[Federal Register Volume 82, Number 1 (Tuesday, January 3, 2017)]
[Rules and Regulations]
[Pages 654-681]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31397]
[[Page 653]]
Vol. 82
Tuesday,
No. 1
January 3, 2017
Part III
Equal Employment Opportunity Commission
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29 CFR Part 1614
Affirmative Action for Individuals With Disabilities in Federal
Employment; Final Rule
Federal Register / Vol. 82 , No. 1 / Tuesday, January 3, 2017 / Rules
and Regulations
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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
29 CFR Part 1614
RIN 3046-AA94
Affirmative Action for Individuals With Disabilities in Federal
Employment
AGENCY: Equal Employment Opportunity Commission.
ACTION: Final rule.
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SUMMARY: The Equal Employment Opportunity Commission (EEOC or
Commission) is issuing its final rule to amend the regulations that
require federal agencies to engage in affirmative action for
individuals with disabilities. These changes clarify the obligations
that the Rehabilitation Act of 1973 imposes on federal agencies, as
employers, that are over and above the obligation not to discriminate
on the basis of disability. The regulation does not apply to the
private sector or to state or local governments.
DATES: Effective date: This final rule will be applicable on March 6,
2017.
Applicability date: The applicability date for this final rule
shall be January 3, 2018.
FOR FURTHER INFORMATION CONTACT: Christopher Kuczynski, Assistant Legal
Counsel, (202) 663-4665, or Aaron Konopasky, Senior Attorney-Advisor,
(202) 663-4127 (voice), or (202) 663-7026 (TTY), Office of Legal
Counsel, U.S. Equal Employment Opportunity Commission. (These are not
toll free numbers.) Requests for this document in an alternative format
should be made to the Office of Communications and Legislative Affairs
at (202) 663-4191 (voice) or (202) 663-4494 (TTY). (These are not toll
free numbers.)
SUPPLEMENTARY INFORMATION:
Executive Summary
This final rule (Final Rule or Rule) amends 29 CFR 1614.203 to
clarify the affirmative action obligations that Section 501 of the
Rehabilitation Act of 1973 (Section 501) \1\ imposes on federal
agencies \2\ as employers. The Rule codifies a variety of obligations
currently placed on federal agencies by management directives and
Executive Orders. It also adds two substantive affirmative action
requirements. First, the Rule requires agencies to take specific steps
that are reasonably designed to gradually increase the number of
employees who have a disability as defined under Section 501, and the
number of employees who have a ``targeted disability,'' which is
defined for purposes of this Rule to mean a disability that is either
designated as ``targeted disability or health condition'' on the Office
of Personnel Management's (OPM's) Standard Form 256 (SF-256),\3\ or
that falls under one of the first 12 categories of disability listed in
Part A of Question 5 of the EEOC's Demographic Information on
Applicants form (Applicant Flow Form),\4\ until they meet specific
goals set by the EEOC. This is consistent with the approach taken by
the Department of Labor''s Office of Federal Contract Compliance
Programs in regulations issued to implement the obligation of federal
contractors to engage in affirmative action for individuals with
disabilities pursuant to Section 503 of the Rehabilitation Act of 1973,
29 U.S.C. 793 (Section 503).\5\
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\1\ 29 U.S.C. 791.
\2\ Section 501 applies to ``each department, agency, and
instrumentality (including the United States Postal Service and the
Postal Regulatory Commission) in the executive branch and the
Smithsonian Institution.'' 29 U.S.C. 791(b). For convenience, this
Notice uses the term ``federal agency'' or ``agency'' to mean any
federal entity covered by Section 501.
\3\ Office of Pers. Mgmt., Standard Form 256 (revised Aug.,
2016), https://www.opm.gov/forms/pdf_fill/sf256.pdf [hereinafter SF-
256]. Targeted disabilities include: developmental disabilities, for
example, autism spectrum disorder; traumatic brain injuries;
deafness or serious difficulty hearing, benefiting from, for
example, American Sign Language; blindness or serious difficulty
seeing even when wearing glasses; missing extremities (arm, leg,
hand and/or foot); significant mobility impairments, benefitting
from the utilization of a wheelchair, scooter, walker, leg brace(s)
and/or other supports; partial or complete paralysis (any cause);
epilepsy and other seizure disorders; intellectual disabilities;
psychiatric disabilities; dwarfism; and significant disfigurement,
for example, disfigurements caused by burns, wounds, accidents, or
congenital disorders.
\4\ EEOC, Demographic Information on Applicants (n.d.), https://www.eeoc.gov/federal/upload/Applicant_Tracking_Form_2-19-2014-2.pdf
[hereinafter Applicant Flow Form]. The first 12 categories of
disability listed in Part A of question 5 are: Deaf or serious
difficulty hearing; blind or serious difficulty seeing even when
wearing glasses; missing an arm, leg, hand, or foot; partial or
complete paralysis (any cause); significant disfigurement (for
example, severe disfigurements caused by burns, wounds, accidents,
or congenital disorders); significant mobility impairment (for
example, uses a wheelchair, scooter, walker or uses a leg brace to
walk); significant psychiatric disorder (for example, bipolar
disorder, schizophrenia, PTSD or major depression); intellectual
disability (formerly described as mental retardation); developmental
disability (for example, cerebral palsy or autism spectrum
disorder); traumatic brain injury; dwarfism; and epilepsy or other
seizure disorder.
\5\ See 41 CFR pt. 60-741.45(a) (establishing a 7% utilization
goal for employment of qualified individuals with disabilities for
the contractor's entire workforce or each job group in the
contractor's workforce).
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Second, the Rule requires agencies to provide personal assistance
services (PAS) to employees who, because of targeted disabilities,
require such assistance in order to be at work or participate in work-
related travel. PAS are services that help individuals with
disabilities perform activities of daily living, including, for
example, assistance with removing and putting on clothing, eating, and
using the restroom. Such services do not, however, include medical
care, and need not be provided by someone who has medical training or
qualifications.
The Commission recognizes that agencies may need some time to
develop the capacity to meet these requirements. The Rule gives
agencies one year to make any necessary changes in policy, staff, or
other aspects of their operations. The applicability date of the Rule
is thus January 3, 2018. Prior to that date, the Commission will
provide extensive outreach and training to help agencies prepare to
meet the new requirements.
The Commission's economic analysis estimates that the Rule will
have a one-time initial cost to the federal government of approximately
$145,580.40; an annual cost to the federal government of between
$23,151,538.70 and $70,954,568.10; and an annual economic benefit to
the federal government of approximately $6,617,619.00. The Rule is also
expected to have a variety of non-monetizable qualitative and dignitary
benefits for individuals with disabilities and individuals with
targeted disabilities.
Background
Section 501 imposes two distinct obligations on federal agencies.
First, it prohibits agencies from discriminating against individuals
with disabilities pursuant to the same standards that are ``applied
under title I of the Americans with Disabilities Act of 1990 . . . and
the provisions of sections 501 through 504, and 510, of the Americans
with Disabilities Act of 1990 . . . as such sections relate to
employment.'' \6\ Current EEOC regulations provide substantial guidance
on these standards at 29 CFR part 1630. Additional guidance is provided
in the many EEOC appellate decisions on complaints of employment
discrimination brought under Section 501. These decisions are published
on the EEOC's Web site, and significant decisions are compiled in a
publicly available digest updated annually by the Commission's Office
of Federal Operations.\7\ This Final Rule does not change any of the
substantive nondiscrimination requirements that
[[Page 655]]
currently apply in the federal sector, as set forth in the EEOC's
regulations and federal sector appellate decisions.
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\6\ 29 U.S.C. 791(f).
\7\ See Digest of Equal Employment Opportunity Law, Equal Emp't
Opportunity Comm'n, http://www.eeoc.gov/federal/digest/index.cfm
(last visited Dec. 21, 2016).
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Second, the section requires each federal agency to maintain,
update annually, and submit to the Commission an ``affirmative action
program plan for the hiring, placement, and advancement of individuals
with disabilities.'' It further directs the Commission to approve an
affirmative action plan (Plan) if ``the Commission determines . . .
that such plan provides sufficient assurances, procedures and
commitments to provide adequate hiring, placement, and advancement
opportunities for individuals with disabilities.'' \8\
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\8\ 29 U.S.C. 791(b).
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The regulations currently implementing the Section 501 affirmative
action requirement simply state that the federal government shall be a
``model employer of individuals with disabilities,'' and that federal
agencies shall ``give full consideration to the hiring, placement, and
advancement of qualified individuals with disabilities.'' \9\ Over the
years, however, the EEOC has issued various Management Directives to
provide guidance on how an agency's Plan should result in the federal
government being a model employer of individuals with disabilities. In
addition, several Executive Orders have been issued, setting numerical
objectives for hiring by the federal government of individuals with
disabilities, to support the goals of Section 501.
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\9\ 29 CFR 1614.203(a).
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In 1987, the Commission issued Management Directive 713 (MD-713),
setting the standards by which the Commission would evaluate an
agency's Plan with regard to the hiring of people with
disabilities.\10\ MD-713 required agencies with 1,000 or more employees
to establish specific numerical objectives (goals) for employment of
people with targeted disabilities, and to report the number of people
with targeted disabilities employed by the agency.\11\
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\10\ EEOC, Management Directive 713, 1987 WL 768434 (Oct. 3,
1987).
\11\ Management Directive 712 (MD-712) preceded MD-713 by four
years. See EEOC, Management Directive 712, 1983 WL 410824 (March 29,
1983). MD-712 created documentation requirements for agencies'
affirmative action plans, but did not include reporting
requirements. MD-712 required agencies to focus on the employment of
individuals with targeted disabilities; included detailed
requirements for program administration and management, including
staffing commitments and responsibilities; and required agencies
with more than 1,000 employees to establish objectives for hiring
people with targeted disabilities. For a general history of the
EEOC's Management Directives, see Office of Fed. Operations, EEOC, A
Look at the EEOC's Office of Federal Operation's Federal Sector
Programs: Past, Present, and Future, Dig. of EEO L., Winter 2008,
http://www.eeoc.gov/federal/digest/xix-1.cfm.
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President Bill Clinton issued Executive Order 13163 on July 26,
2000 ``to support the goals articulated in section 501 of the
Rehabilitation Act of 1973.'' \12\ Under this Executive Order, each
federal agency was required to prepare a plan to increase the
opportunities for individuals with disabilities to be employed in the
agency, and to submit the plan to OPM within 60 days from the date of
the order. The Executive Order stated that ``based on current hiring
patterns and anticipated increases from expanded outreach efforts and
appropriate accommodations, the Federal Government, over the next 5
years, will be able to hire 100,000 qualified individuals with
disabilities.'' \13\ The same day, President Clinton issued Executive
Order 13164, which requires federal agencies to establish written
reasonable accommodation procedures, with a series of detailed
requirements to be included in those written procedures.\14\ Shortly
thereafter, the EEOC issued Policy Guidance on Executive Order 13164:
Establishing Procedures to Facilitate the Provision of Reasonable
Accommodation.\15\
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\12\ See Executive Order No. 13163, 3 CFR 285 (2001), http://www.gpo.gov/fdsys/pkg/FR-2000-07-28/pdf/00-19322.pdf.
\13\ Id.
\14\ Executive Order No. 13164, 3 CFR 286 (2001), http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=2000_register&docid=fr28jy00-140.pdf.
\15\ EEOC, Policy Guidance On Executive Order 13164:
Establishing Procedures To Facilitate The Provision Of Reasonable
Accommodation (last modified Oct. 19, 2000), http://www.eeoc.gov/policy/docs/qanda-accommodation_procedures.html [hereinafter 13164
Guidance].
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In 2003, the EEOC issued Management Directive 715 (MD-715),\16\
which superseded MD-713 and is still in effect. Part B of MD-715
provides detailed standards by which the Commission judges an agency's
affirmative action plan with regard to the hiring of people with
disabilities. The Directive requires agencies ``to conduct an internal
review and analysis of the effects of all current and proposed
policies, practices, procedures and conditions that, directly or
indirectly, relate to the employment of individuals with
disabilities,'' and to ``collect and evaluate information and data
necessary to make an informed assessment about the extent to which the
agency is meeting its responsibility to provide employment
opportunities for qualified applicants and employees with disabilities,
especially those with targeted disabilities.'' \17\ Pursuant to
Executive Order 13164, MD-715 also requires agencies to have written
procedures for providing reasonable accommodations, including the
amount of time decision makers have to answer reasonable accommodation
requests.\18\ Finally, MD-715 reinforces the requirement from MD-713
that agencies with 1,000 or more employees are required ``to maintain a
special recruitment program for individuals with targeted disabilities
and to establish specific goals for the employment and advancement of
such individuals,'' and to report the numbers of employees with
targeted disabilities to the EEOC.\19\
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\16\ EEOC, Management Directive 715 (Oct. 1, 2003), http://www.eeoc.gov/federal/directives/md715.cfm [hereinafter MD-715].
\17\ Id. at B.III.
\18\ Id. at B.V.
\19\ Id. at B.V.
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In 2005, the EEOC issued additional guidance providing agencies
with detailed practical advice for drafting and implementing reasonable
accommodation procedures under Executive Order 13164,\20\ and in 2008,
the Commission issued a detailed question-and-answer document on
promoting the employment of individuals with disabilities in the
federal workforce.\21\
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\20\ EEOC, Practical Advice on Drafting and Implementing
Reasonable Accommodation Procedures under Executive Order 13164,
(July 2005), http://www.eeoc.gov/policy/docs/implementing_accommodation.pdf.
\21\ EEOC, Questions and Answers: Promoting Employment of
Individuals with Disabilities in the Federal Workforce (n.d.),
http://eeoc.gov/federal/qanda-employment-with-disabilities.cfm
[hereinafter Promoting Employment].
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In July 2010, President Barack Obama issued Executive Order 13548,
again setting a goal of having the federal government hire 100,000
persons with disabilities within five years.\22\ The Executive Order
required agencies to set their own hiring goals for persons with
disabilities as defined under Section 501 and sub-goals for persons
with targeted disabilities as defined by SF-256, and to report those
goals to OPM. Again, policy and guidance documents were developed
pursuant to this Executive Order.\23\
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\22\ Executive Order No. 13548, 3 CFR 168 (2010), http://www.gpo.gov/fdsys/pkg/FR-2010-07-30/pdf/2010-18988.pdf.
\23\ Office of Pers. Mgmt., Model Strategies for Recruitment and
Hiring of People with Disabilities (Nov. 8, 2010), https://www.chcoc.gov/content/model-strategies-recruitment-and-hiring-people-disabilities-required-under-executive-order. This guidance
document was developed in consultation with the White House, the
Department of Labor, and the EEOC.
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The Rule
On May 15, 2014, the Commission published an Advance Notice of
Proposed Rulemaking (ANPRM) requesting public comment on specific
inquiries regarding ways to strengthen its Section 501 affirmative
action regulations.\24\ A total of 89 comments were received.\25\
Taking the comments into account, the Commission published a Notice of
Proposed Rulemaking (NPRM) proposing specific revisions to the Section
501 regulations on February 24, 2016.\26\ The NPRM also asked for
public input on 7 specific aspects of the proposal.\27\
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\24\ The Federal Sector's Obligation to Be a Model Employer of
Individuals with Disabilities, 79 FR 27,824 (May 15, 2014) (to be
codified at 29 CFR 1614.203, .601(f)).
\25\ In addition to the 89 comments, the Commission received
several duplicate comments.
\26\ Affirmative Action for Individuals with Disabilities in the
Federal Government, 81 FR 9123 (Feb. 24, 2016) (to be codified at 29
CFR 1614.203, .601(f)).
\27\ Id. at 9130.
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The Commission received a total of 103 comments on the proposed
rule, representing the opinions of 73 individuals, 52 disability
advocacy organizations, 5 federal agencies, 2 federal government
organizations, 3 state government organizations, 2 vocational
rehabilitation organizations, and 1 group of administrative law
students.\28\ Twenty-one of the comments were non-responsive. The
comments are available for review at the Federal eRulemaking Portal at
http://www.regulations.gov.
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\28\ Some comments represented the opinions of more than one
entity, and some individuals submitted more than one comment.
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The Commission has reviewed and given due consideration to all
comments received during the public comment period, and now issues its
Final Rule amending 29 CFR 1614.203 and 1614.601(f) to update, clarify,
and put in one place the standards that the Commission will use to
review and approve agency Plans. The comments resulted in numerous
changes to the specific requirements proposed in the NPRM. Relevant
comments and Commission responses are discussed in detail in the
Section-by-Section Analysis below. The Commission also made several
stylistic changes that do not affect the substantive requirements of
the Rule.
Commenters also offered suggestions for additional requirements not
proposed in the NPRM. In some cases, the suggested requirements were
not added because the Commission lacked the requisite authority. For
example, the Rule does not amend Workers' Compensation laws; revise
regulations governing the hiring authority for individuals with
intellectual disabilities, severe physical disabilities, or psychiatric
disabilities, as set forth at 5 CFR 213.3102(u) (Schedule A hiring
authority for persons with certain disabilities) by, for example,
extending the trial employment period or changing the eligibility
criteria; create or abolish other hiring authorities; prohibit agencies
from making their own hiring decisions; or extend Section 501
obligations to state and local governments, federal contractors,\29\ or
businesses in the private sector generally.
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\29\ However, we note that federal contractors are subject to
obligations to engage in affirmative action for individuals with
disabilities under Section 503. See 29 U.S.C. 793(d); 41 CFR pt. 60-
741.
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The Commission also did not add a provision that either grants or
denies a private right of action to enforce the affirmative action
regulations, as suggested by some commenters. The Commission requested
public input on the ability of individuals to seek enforcement of the
requirement to provide PAS, codified at paragraph (d)(5) of the Rule as
amended, in individual cases. Nonetheless, this is a matter of first
impression, and the Commission believes that its procedural regulations
governing complaints of discrimination in the federal sector, found at
29 CFR 1614, subpart A, are the most appropriate place to address this
question. As such, this Rule takes no position on the availability of a
private remedy for either the PAS obligation or the affirmative action
obligations more generally.
Other requirements were not added because they concerned issues
that were beyond the scope of this rulemaking. For example, the Rule
does not provide that a change in supervisors is a reasonable
accommodation, that inaccessible job application processes may give
rise to claims of employment discrimination, or that individuals have a
right to representation during the interactive process, because these
suggestions pertain to Section 501's nondiscrimination requirements,
which are the same as the nondiscrimination requirements of Title I
\30\ and certain provisions of Title V \31\ of the Americans with
Disabilities Act (ADA) applicable to private and state and local
government employers.\32\ The EEOC has regulations describing the ADA's
nondiscrimination requirements at 29 CFR part 1630. For similar
reasons, the Rule does not address methods of oversight established
elsewhere in part 1614.
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\30\ 42 U.S.C. 12101-12117.
\31\ 42 U.S.C. 12201-12213.
\32\ Congress incorporated all of the ADA's employment
discrimination provisions in 1992. See Rehabilitation Act Amendments
of 1992, Pub. L. 102-569, 106 Stat. 4344, 4424 (codified as amended
at 29 U.S.C. 791(f)).
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In some cases, suggested requirements were not added because they
would affect matters governed by both EEOC and OPM regulations. For
example, the Commission has not added requirements to the Rule designed
to prevent violations of Section 501's qualification standard
provisions.\33\ Qualification standards are governed by EEOC's
nondiscrimination regulations at 29 CFR part 1630.\34\ These
regulations clarify that the ADA/Section 501 qualification standard
provisions require federal agencies to exempt an individual from a
qualification standard, test, or other selection criterion if there is
sufficient evidence that he or she cannot meet such standard, test, or
criterion because of a disability, but can nevertheless perform the
essential functions of the position with a reasonable accommodation (if
one is required).\35\ However, qualification standards are also
governed by OPM regulations.\36\ Similarly, the Final Rule does not
address vacancy announcements; benefit programs such as return-to-work
programs; or alternative models of employment such as apprenticeship
programs, customized employment, and job splitting, which are also
affected by OPM regulations. EEOC and OPM are working together to
develop coordinated strategies on some of these issues and other
matters over which both agencies have jurisdiction.
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\33\ The ADA prohibits ``using qualification standards,
employment tests or other selection criteria that screen out or tend
to screen out an individual with a disability or a class of
individuals with disabilities,'' unless a defense applies. 42 U.S.C.
12112(b)(6), 12113(a). These provisions were made applicable to
federal agencies when Congress incorporated all of the ADA's
employment discrimination provisions into Section 501. See
Rehabilitation Act Amendments, 106 Stat. at 4424.
\34\ The Commission's ADA regulations were incorporated into
EEOC's Section 501 regulations, via full notice and comment, after
Congress incorporated the ADA's employment discrimination provisions
into Section 501. See Federal Sector Equal Employment Opportunity,
67 FR 35,732, 35,735 (May 21, 2002) (codified at 29 CFR
1614.203(b)). Further guidance on the nondiscrimination requirements
pertaining to qualification standards can be found in several cases
issued through the federal sector complaint process.
\35\ See 29 CFR 1630.10, .15(b), .15(c); 29 CFR pt. 1630, app.
1630.10, .15(b) and (c).
\36\ See 5 CFR pt. 338 and authorities cited therein.
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One commenter stated that the Rule should include an exemption for
small agencies. However, except in the case of the workforce analysis
and goal requirements imposed by paragraphs
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(d)(6) and (d)(7), discussed below, the commenter failed to identify
any basis on which to conclude that the Rule's requirements were
inappropriate for, or especially burdensome to, small agencies. For
example, there is no reason to believe that small agencies cannot or
should not adopt written reasonable accommodation procedures as
required by paragraph (d)(3)(i) of the Final Rule. The Commission
therefore has not added a general exemption.
Authority
The Commission issues this Final Rule under its Section 501
rulemaking authority. Congress expressly granted the Commission
authority to issue substantive regulations under Section 501 by
incorporating the federal sector enforcement provisions of Title VII of
the Civil Rights Act of 1964 (Title VII) in Section 505 of the
Rehabilitation Act of 1973 (Section 505).\37\ The incorporated
provisions provide that ``the Equal Employment Opportunity Commission .
. . shall issue such rules, regulations, orders and instructions as it
deems necessary and appropriate'' to carry out its federal sector
responsibilities under Title VII (and, by incorporation, its federal
sector responsibilities under Section 501).\38\ The Commission also has
express authority under Executive Order 12067 to ``issue such rules,
regulations, policies, procedures or orders as it deems necessary to
carry out its responsibilit[y]'' to ``provide leadership and
coordination to the efforts of Federal departments and agencies to
enforce all Federal statutes, Executive orders, regulations, and
policies which require equal employment opportunity without regard to .
. . handicap.'' \39\
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\37\ See 29 U.S.C. 794a (incorporating 42 U.S.C. 2000e-5(e)(3),
2000e(f)-(k), 2000e(16)).
\38\ 42 U.S.C. 2000e-16(b). This grant of authority to issue
regulations implementing the federal sector provisions of Title VII
is in addition to the more limited grant pursuant to EEOC's
responsibility to enforce Title VII in the private sector. See 42
U.S.C. 2000e-12(a) (granting the Commission authority to issue,
amend, or rescind ``suitable procedural regulations'').
\39\ Executive Order No. 12067, 3 CFR, 1978 Comp., p. 206
(1978), http://www.archives.gov/federal-register/codification/executive-order/12067.html.
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As explained above, Section 501 requires federal agencies to engage
in ``affirmative action'' for individuals with disabilities. However,
the statute neither defines the term ``affirmative action'' nor
provides detailed standards by which to determine whether an agency has
met this requirement. Proper and effective enforcement of the statute
thus ``necessarily requires the formulation of policy and the making of
rules to fill any gap left, implicitly or explicitly, by Congress.''
\40\ This gap, together with the Commission's ``generally conferred
authority'' under Section 501, make it ``apparent . . . that Congress .
. . expect[s] the agency to be able to speak [to the issue] with the
force of law . . . .'' \41\ The Commission thus has both the authority
and the responsibility to issue regulations providing specific guidance
to federal agencies on what they must do to satisfy their Section 501
obligation to engage in affirmative action for individuals with
disabilities.
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\40\ Morton v. Ruiz, 415 U.S. 199, 231 (1974); Chevron, U.S.A.,
Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)
(quoting Morton, 415 U.S. at 231).
\41\ United States v. Mead Corp., 533 U.S. 218, 229 (2001)
(citing Chevron, 467 U.S. at 845); see Mayo Found. for Med. Educ. &
Research v. United States, 562 U.S. 44, 55 (2011) (citing Chevron,
467 U.S. at 843).
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The Commission's prior regulations implementing the affirmative
action requirement, requiring agencies to be ``model employers'' of
individuals with disabilities and to give ``full consideration to the
hiring, placement, and advancement'' of qualified individuals with
disabilities, were promulgated pursuant to the above authority in
1982.\42\ The Commission has also used its authority under Section 501
to provide subregulatory guidance to federal agencies on the contents
of affirmative action programs for individuals with disabilities since
1987.\43\ Now, having found that its prior regulatory and subregulatory
guidance was not sufficiently advancing the employment of qualified
individuals with disabilities, the Commission again exercises its
authority under Section 501 to strengthen the regulations implementing
the affirmative action requirement.\44\ The Final Rule strengthens the
regulations by--
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\42\ See Federal Sector Equal Employment Opportunity, 67 FR
35,732, 35,735 (May 21, 2002) (codified at 29 CFR 1614.203(b)).
\43\ See Management Directive 713, supra note 10.
\44\ Cf. Assoc. Builders & Contractors, Inc. v. Shiu, 773 F.3d
257, 261, 263-64 (D.C. Cir. 2014) (finding regulations that
strengthened Section 503 affirmative action requirements on federal
contractors valid under similar circumstances).
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gathering longstanding requirements previously found in a
variety of documents into a single regulation, making them easier to
find and clarifying that they have the force and effect of law;
imposing a new requirement to take specific steps that are
reasonably designed to gradually increase the number of employees with
disabilities and employees with targeted disabilities until they meet
specific goals set by the EEOC; and
imposing a new requirement to provide PAS to employees
with targeted disabilities who need them during work hours and work-
related travel.
Section-by-Section Analysis
1614.203(a) Definitions
Paragraph (a) of the proposed rule provided definitions of key
terms. Many of the proposed definitions were simple abbreviations:
(a)(1) provided that ``ADA'' refers to those portions of the ADA that
are enforced by the Commission; \45\ (a)(4) provided that ``Plan''
refers to an agency's affirmative action plan, as required under 29
U.S.C 791(b); (a)(5) provided that ``Schedule A hiring authority for
persons with certain disabilities'' refers to the hiring authority for
individuals with intellectual disabilities, severe physical
disabilities, and psychiatric disabilities, as set forth at 5 CFR
213.3102(u); and (a)(6) provided that ``Section 501'' means Section 501
of the Rehabilitation Act, codified at 29 U.S.C. 791. The Commission
received no objections to these definitions, which are retained in the
Rule.\46\
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\45\ These are title I of the ADA, 42 U.S.C. 12101 through
12117, and title V of the ADA, 42 U.S.C. 12201 through 12213, as it
applies to employment.
\46\ Proposed paragraphs (a)(4), (a)(5), and (a)(6) have been
redesignated (a)(6), (a)(7), and (a)(8) respectively in the Final
Rule.
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Paragraph (a)(2) of the proposed rule provided that the term
``disability'' has the same meaning as set forth in 29 CFR part 1630.
One commenter stated that the term should instead be defined using a
``standard set of disability identifiers'' developed pursuant to
section 4302 of the Affordable Care Act.\47\ Because the Rule
implements Section 501, and not the Affordable Care Act, the Commission
is required to adopt the definition of ``disability'' that applies
under Section 501. The proposed definition of ``disability'' has
therefore been retained.
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\47\ 42 U.S.C. 300kk; see generally U.S. Dep't of Health & Human
Servs., Implementation Guidance on Data Collection Standards for
Race, Ethnicity, Sex, Primary Language, and Disability Status
(n.d.), https://aspe.hhs.gov/sites/default/files/pdf/76331/index.pdf.
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Proposed paragraph (a)(8), providing that the term ``undue
hardship'' has the same meaning as set forth in 29 CFR part 1630, has
also been retained.\48\ Undue hardship, which is both a limitation on
an agency's obligation to make reasonable accommodations and to provide
personal assistance services, considers the nature, extent, and cost of
an accommodation or of providing personal assistance services in
relation to an agency's overall resources and the
[[Page 658]]
impact of the accommodation or of the requirement to provide personal
assistance services on the operation of the agency's business. The term
is one that agencies have been familiar with since they have been
required to comply with Section 501 of the Rehabilitation Act, and
agency's written reasonable accommodation procedures typically explain
the term's meaning and application.
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\48\ The paragraph has been redesignated (a)(10) in the Final
Rule.
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Paragraph (a)(3) of the proposed rule provided that the term
``hiring authority that takes disability into account'' means any
hiring authority that permits an agency to consider disability status
in the selection of individuals for employment. To improve clarity, the
definition has been revised to state that the term means any hiring
authority that permits an agency to consider disability status ``during
the hiring process.''
Paragraph (a)(7) of the proposed rule defined the term ``targeted/
severe disability'' to mean disabilities specifically designated as
``targeted/severe'' on the SF-256.\49\ As explained in the NPRM,
disabilities that fall under this term are a subset of those that meet
the definition of ``disability'' as defined under (a)(2). This subset
is the focus of additional attention under several paragraphs in the
Rule, discussed below. Some commenters stated that the Rule should use
the term ``significant disability'' rather than ``targeted/severe
disability,'' because some individuals find the term ``severe'' to be
stigmatizing. One of these commenters stated further that the Rule
should adopt the definition of ``significant disability'' given in
Section 7 of the Rehabilitation Act of 1973.\50\
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\49\ At the time the NPRM was published, the SF-256 used the
term ``targeted/severe disability'' rather than ``targeted
disability.''
\50\ 29 U.S.C. 705(21) (``Except as provided in subparagraph (B)
or (C), the term `individual with a significant disability' means an
individual with a disability--(i) who has a severe physical or
mental impairment which seriously limits one or more functional
capacities (such as mobility, communication, self-care, self-
direction, interpersonal skills, work tolerance, or work skills) in
terms of an employment outcome; (ii) whose vocational rehabilitation
can be expected to require multiple vocational rehabilitation
services over an extended period of time; and (iii) who has one or
more physical or mental disabilities resulting from amputation,
arthritis, autism, blindness, burn injury, cancer, cerebral palsy,
cystic fibrosis, deafness, head injury, heart disease, hemiplegia,
hemophilia, respiratory or pulmonary dysfunction, intellectual
disability, mental illness, multiple sclerosis, muscular dystrophy,
musculo-skeletal disorders, neurological disorders (including stroke
and epilepsy), paraplegia, quadriplegia, and other spinal cord
conditions, sickle cell anemia, specific learning disability, end-
stage renal disease, or another disability or combination of
disabilities determined on the basis of an assessment for
determining eligibility and vocational rehabilitation needs
described in subparagraphs (A) and (B) of paragraph (2) to cause
comparable substantial functional limitation.'').
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The Commission declines to use the term ``significant disability''
in place of ``targeted/severe disability.'' The term ``significant
disability,'' as used by the federal government, refers to a group of
disabilities that qualify an individual to receive certain government-
funded services and benefits.\51\ By contrast, the term ``targeted/
severe disability,'' as used in the proposed rule, was intended to
refer to a group of disabilities that ``have historically been used to
exclude qualified individuals from employment,'' \52\ and therefore
that, ``as a matter of policy, [have been] identified for special
emphasis in affirmative action programs.'' \53\ We believe that use of
a single term--``significant disability''--to refer both to
disabilities that have historically been used to exclude qualified
individuals from employment, and, at the same time, to a different
group of disabilities that qualify an individual to receive certain
government-funded services and benefits, is likely to cause confusion.
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\51\ See, e.g., 29 U.S.C. 796b (``Services may be provided under
[29 U.S.C. ch. 16, subch. VII, pt. A] to any individual with a
significant disability, as defined in section 705(21)(B) of [title
29].'').
\52\ Promoting Employment, supra note 21, at I.
\53\ MD-715, supra note 16, at app. A.
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The Final Rule does, however, use the term ``targeted disability''
in place of ``targeted/severe disability.'' \54\ OPM's revised SF-256
uses the term ``targeted disabilities or serious health conditions''
rather than ``targeted/severe disabilities.'' The revision to the Rule
therefore both conforms the Rule to OPM's new terminology and addresses
the commenters' concern that some individuals find the term ``severe''
to be stigmatizing. In addition, the definition of the term has been
widened to include disabilities that fall under one of the first 12
categories of disability listed in Part A of question 5 on the EEOC's
Applicant Flow Form, which include several disabilities that have
historically been used to exclude qualified individuals from
employment, but that are not designated as ``targeted'' on the SF-256
(for example cerebral palsy).\55\ The EEOC recognizes that it will be
helpful for agencies to have an updated SF-256 that conforms to the
Applicant Flow Form. The EEOC continues to work with OPM in such an
effort. In the meantime, the EEOC will consider both sets of
disabilities to be ``targeted'' for purposes of the Rule.
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\54\ The definition of ``targeted disability'' appears in
paragraph (a)(9) of the Final Rule.
\55\ See Applicant Flow Form, supra note 4, at 2.
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Definitions of the terms ``personal assistance services'' and
``personal assistance service provider'' have been added to the
paragraph at (a)(5) and (a)(6), because several commenters expressed
confusion over the meaning of the term in the proposed rule. We discuss
the definition in connection with paragraph (d)(5) below.
1614.203(b) Nondiscrimination
Paragraph 1614.203(b) of the existing regulations states that
Section 501 prohibits disability discrimination in employment, and that
the standards used to determine whether an agency has violated the
prohibition against discrimination are those applied under the ADA. The
NPRM proposed minor revisions to improve clarity. The Commission
received no objections to the proposed revisions, which have been
retained in the Final Rule.
1614.203(c) Model Employer
This paragraph redesignates and revises paragraph 1614.203(a) of
the current regulations, which provides that the federal government
shall be a ``model employer'' of individuals with disabilities, and
that agencies shall ``give full consideration to the hiring, placement,
and advancement of individuals with disabilities.''
The NPRM did not propose any textual changes to the paragraph.
However, some commenters objected to the use of the term ``placement,''
both here and throughout the regulation, because some individuals with
disabilities find it offensive. Accordingly, alternate language has
been incorporated here and throughout the Rule where possible. However,
because Section 501 itself uses the term ``placement,'' \56\ the Rule
retains the term where it directly references the language of the
statute.
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\56\ See 29 U.S.C. 791(b).
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Other commenters stated that the paragraph should be revised to
reflect the affirmative action requirements imposed through this
rulemaking. The Commission agrees. Accordingly, the paragraph has been
revised to state that ``[a]gencies shall [ ] take affirmative action to
promote the recruitment, hiring, and advancement of qualified
individuals with disabilities, with the goal of eliminating under-
representation of individuals with disabilities in the federal
workforce,'' and that agencies shall give ``full consideration to the .
. . retention of qualified individuals with disabilities in the federal
workforce.''
1614.203(d) Affirmative Action Plan
As provided by Section 501, this paragraph states that each agency
shall adopt and implement a Plan that
[[Page 659]]
provides sufficient assurances, procedures, and commitments to provide
adequate recruitment, hiring, and advancement opportunities for
individuals with disabilities at all levels of federal employment. It
also sets forth the requirements that the Plan must meet in order to be
approved by the Commission. The specific requirements are discussed in
separate sections below.
Several commenters stated that the term ``adequate,'' as used in
the statutory language quoted above, should be defined to mean
``adequate to ensure meeting the goals required under paragraph (d)(7)
of this section.'' The Commission disagrees. If, on the one hand, the
proposed definition was intended simply to clarify the meaning of the
word, the Commission believes that the clarification is unnecessary.
Section 501 requires the Commission to approve agency Plans if they
``provide[ ] sufficient assurances, procedures, and commitments to
provide adequate recruitment, hiring, and advancement opportunities for
individuals with disabilities at all levels of federal employment.'' By
setting forth the criteria that the Commission will use to determine
whether to approve a Plan in paragraph (d), the Rule effectively
defines the meaning of that phrase as a whole. If, on the other hand,
the definition was suggested in order to create additional criteria by
which the Commission will evaluate agency Plans, the Commission
disagrees with the suggestion because it would imply, contrary to
paragraph (f) and to the Commission's intention, that paragraph (d)
does not set forth an exhaustive list of Plan criteria.
1614.203(d)(1)(i) Disability Hiring and Advancement Program:
Recruitment
Paragraph (d)(1)(i) of the proposed rule required agencies to use
programs and resources that identify applicants who are eligible to be
appointed under hiring authorities that take disabilities into account,
examples of which include specialized training programs and databases
of potential job applicants with disabilities. The paragraph also
required agencies to establish and maintain contacts with organizations
that specialize in the employment of individuals with disabilities,
such as American Job Centers, State Vocational Rehabilitation Agencies,
the Veterans' Vocational Rehabilitation and Employment Program, Centers
for Independent Living, and Employment Network Service providers. In
addition, the NPRM asked whether the Rule should require agencies to
maintain a file or database of individuals who have been determined to
be eligible for appointment under a hiring authority that takes
disability into account, but who were not hired, and, if so, whether
inclusion in the database should be voluntary.
A significant number of commenters stated that recruitment of
individuals with targeted disabilities should receive additional
emphasis in the paragraph. Consistent with the federal government's
policy of giving targeted disabilities ``special emphasis in
affirmative action programs,'' \57\ paragraph (d)(1)(i) has been
amended to require agencies to use programs and resources that identify
job applicants with disabilities, ``including individuals with targeted
disabilities,'' who are eligible for appointment under a special hiring
authority, and to establish and maintain contacts with organizations
that specialize in providing assistance to individuals with
disabilities, ``including individuals with targeted disabilities,'' in
securing and maintaining employment.
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\57\ MD-715, supra note 16, at app. A.
---------------------------------------------------------------------------
Some commenters stated that agencies should be required to use all
of the programs and resources, and to maintain contact with all of the
disability organizations, given as examples in the paragraph. Some
stated that use of additional programs and resources, such as
internship programs and community message boards, and contact with
additional disability organizations, such as state Protection and
Advocacy organizations, Ticket to Work networks, supported and
customized employment providers, college or university career centers
that cater to individuals with disabilities, and local education
authorities, should also be mandatory.
The Commission is not persuaded that every agency will benefit from
the same set of programs, resources, and disability organizations in
their efforts to recruit individuals with disabilities and individuals
with targeted disabilities. The particular programs, resources, and
disability organizations referenced in the paragraph have therefore
been kept as examples. Because there is no need to make the list of
examples exhaustive, most of the suggested additions were not included
in the final paragraph, though they certainly may be appropriate
resources to assist agencies in meeting their affirmative action
obligations. However, because it was a particularly common suggestion,
internship programs were added as examples of programs or resources
that can be used to identify individuals who may be appointed under
hiring authorities that take disability into account.
Some commenters stated that, instead of requiring agencies to
``maintain contacts'' with organizations that specialize in the
employment of individuals with disabilities, the Commission should
require agencies to establish and maintain ``linkage agreements or
other formal arrangements'' with such organizations. The paragraph has
been revised to state that the required contacts may include formal
agreements, but does not make formal agreements mandatory. The EEOC
lacks the information necessary to determine, for example, how many
formal agreements each agency should have, what each party to the
agreement should be obligated to do, and what should happen if a party
fails to meet an obligation in the agreement. Further, the Commission
suspects that different approaches may be appropriate for different
agencies.
Many commenters responding to the proposal to require a file or
database of individuals who have been determined to be eligible for
appointment under a hiring authority that takes disability into account
but who have not been hired generally favored some version of the
proposal, but there was disagreement regarding the location of the
database. For example, several commenters stated that the file/database
needs to be government-wide in order to be effective. Other commenters
stated that the databases should be required, but they would be more
effective if each agency maintained its own database of individuals
with disabilities who had already evidenced interest in the agency.
Upon further consideration, however, the Commission has concluded
that agencies should be encouraged to maintain such databases, rather
than making such databases mandatory for every agency. Databases
containing the r[eacute]sum[eacute]s of applicants eligible for
appointment under the Schedule A hiring authority for individuals with
certain disabilities, and similar resources, will greatly assist
agencies in locating and hiring qualified job applicants with
disabilities and targeted disabilities. Such databases will be of
significant help as agencies seek to meet their targets with regarding
to hiring such individuals.
The Commission therefore retains ``databases of potential job
applicants with disabilities'' as an example of programs and resources
that identify such applicants in paragraph (d)(1)(i)(A) of the Rule,
and encourages agencies to develop new databases or augment existing
r[eacute]sum[eacute] databases to fulfill these
[[Page 660]]
functions. Should an agency decide to maintain such a database, the
Commission advises the agency to include individuals in the database on
a voluntary basis only, and to retain in the database only such
information as is necessary to determine an applicant's identity,
qualifications, and eligibility for appointment under a hiring
authority that takes disability into account. Medical information about
an individual's specific disability should not be included. The
Commission is willing to provide technical assistance to any agency
with regard to maintaining a database consistent with all applicable
privacy \58\ and record retention \59\ laws and regulations.
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\58\ R[eacute]sum[eacute]s, like all records that are personally
identifiable and contained in a system of records, are subject to
the confidentiality requirements of the Privacy Act. See 5 U.S.C.
552a. Privacy Act requirements regarding r[eacute]sum[eacute]s that
are submitted by applicants to federal agencies, including those
submitted by applicants for appointment under the Schedule A hiring
authority for individuals with certain disabilities, are
specifically addressed by the Office of Personnel Management's
Government-Wide Systems of Records Notice, OPM/GOVT-5, Recruiting,
Examining, and Placement Records. See Privacy Act of 1974, System of
Records, 71 FR 35,351 (June 19, 2006); Privacy Act of 1974; Routine
Use Implementation; System of Records, 80 FR 74,815 (Nov. 30, 2015).
\59\ Federal record retention requirements are overseen by the
National Archives and Records Administration (NARA). See, e.g.,
Records Management, Nat'l Archives & Recs. Admin., https://www.archives.gov/records-mgmt/ (last visited Dec. 21, 2016).
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1614.203(d)(1)(ii) Disability Hiring and Advancement Program:
Application Process
Paragraph (d)(1)(ii) of the proposed rule required agencies to
ensure that they have sufficient staff to handle any disability-related
issues that arise during the application and selection processes. It
also required the agency to provide such staff with training, support,
and other resources sufficient to enable them to (A) answer any
disability-related questions from members of the public regarding the
application and hiring processes; (B) provide job applicants with
necessary reasonable accommodations; (C) accept applications for
appointment under hiring authorities that take disability into account;
(D) determine whether individuals who have applied for appointment
under a hiring authority that takes disability into account are
eligible for such appointment; (E) forward the application of an
individual who has applied for appointment to a particular position
under a hiring authority that takes disability into account and who is
eligible to the relevant hiring officials, and explain to those
officials how and when the individual may be appointed; and (F) oversee
any other disability-related hiring programs. Proposed paragraphs
(d)(1)(ii)(D) and (d)(1)(ii)(E) were combined into a single paragraph
(d)(1)(ii)(E) in the Final Rule, in order to clarify that agencies are
not required to determine whether an individual is eligible for
appointment under a hiring authority that takes disability into account
unless such individual is being considered for a particular position.
Some commenters stated that the paragraph should be more specific
as to who should perform the duties described above. Commenters
suggested, for example, that only employees who focus on disability-
related issues full time, employees who themselves have disabilities,
or employees who are not under the supervision of the office of human
resources should perform the duties. One commenter stated that the
paragraph should specify the number of staff members who are assigned
to these duties.
The Commission believes that agencies should be afforded some
flexibility in how the duties are carried out and declines to adopt a
one-size-fits-all approach. Some small agencies, for example, may not
need an employee who works on disability-related issues on a full-time
basis, and the proper number of employees required to handle duties
related to the hiring of individuals with disabilities will vary
depending on an agency's size and structure. Additionally, we see no
reason to conclude categorically that employees who handle issues
related to applications from individuals with disabilities should not
be under the supervision of an agency's human resources office, though
we caution that a human resources specialist assigned to handle
applications for a particular job may not necessarily have the
necessary expertise to handle requests for reasonable accommodation,
questions about hiring authorities that take disability into account,
and other questions from job applicants with disabilities. Finally, the
Commission does not believe that employees with disabilities are
necessarily the only individuals capable of effectively handling duties
related to the hiring of other individuals with disabilities, and
embodying such an assumption in the Final Rule may actually work to
encourage the segregation of individuals with disabilities into
specific job categories.
Some commenters stated that the paragraph should require agencies
to provide relevant staff members with accurate information on
reasonable accommodation, the Schedule A hiring authority for persons
with certain disabilities, the affirmative action requirements imposed
under this rulemaking, and other disability-related issues. Because the
paragraph already requires agencies to provide ``sufficient training,
support, and other resources to carry out'' the tasks listed above, the
Commission concludes that no additional language is necessary.
1614.203(d)(1)(iii) Disability Hiring and Advancement Program:
Advancement
This paragraph of the proposed rule required agencies to take
specific steps to ensure that current employees with disabilities have
sufficient opportunities for advancement, such as engaging in efforts
to ensure that employees with disabilities are informed of and have
opportunities to enroll in relevant training, developing and
maintaining mentoring programs, and administering exit interviews that
address the recruitment, hiring, inclusion, and advancement of
individuals with disabilities.
Some commenters stated that all of the specific steps referenced in
the paragraph should be mandatory. Others stated that they should be
made more specific, by, for example, requiring agencies to hire
dedicated ``disability advancement staff''; approach all employees with
disabilities when training opportunities arise; give all notices of
training opportunities ``promptly'' to individuals with disabilities in
accessible formats; hire full-time assistive technology experts, and
make use of the programs, resources, and disability organizations
referenced in paragraph (d)(1)(i) to facilitate advancement.\60\ Again,
the Commission is not persuaded that every agency will benefit from the
same strategies for improving advancement opportunities for individuals
with disabilities and individuals with targeted disabilities. The Rule
has therefore retained the original examples.
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\60\ As an alternative, the same commenter suggested that the
paragraph should be revised to require ``extra,'' ``concentrated,''
or ``specialized'' efforts to ensure that employees with
disabilities are aware of training opportunities. Because the
Commission does not know how the additional language would change
the obligations imposed by the paragraph, the alternative suggestion
was not considered.
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Some commenters stated that the paragraph should contain
prohibitions against disability discrimination. For example, commenters
stated that the paragraph should require agencies to make reasonable
accommodations available to participants in mentoring
[[Page 661]]
programs, that individuals with disabilities must be afforded equal
opportunities to gain work experience, and that individuals appointed
under the Schedule A hiring authority for persons with certain
disabilities should be afforded supervision similar to that given other
employees.\61\ As explained above, the Commission believes that it is
inappropriate to provide new guidance on nondiscrimination obligations
applicable to federal agencies, as well as to private and state and
local government employers, in a regulation that applies only to the
affirmative action obligations of federal agencies.
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\61\ One commenter stated that the Rule should prohibit
individuals appointed under the Schedule A hiring authority for
people with certain disabilities from filing discrimination
complaints. Because this requirement does not implement principles
of affirmative action, it has not been included.
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Some commenters stated that the paragraph should require review of
all adverse actions taken against individuals with disabilities by, for
example, the head of the agency or a neutral, non-agency party. Federal
employees already possess several means of subjecting adverse actions
to further review. Depending on the issues involved, employees may make
use of existing internal mechanisms including alternative dispute
resolution, if available; file complaints of employment discrimination
pursuant to 29 CFR 1614.106; file appeals with the Merit Systems
Protection Board; and file appeals with the U.S. Office of Special
Counsel.\62\ The Commission has been given no reason to believe that an
additional layer of review would improve either the accuracy or the
speed with which reviews are carried out. Indeed, because an additional
layer of review would not toll existing time frames for filing
complaints of discrimination, it is quite likely that such a
requirement would significantly burden agencies while resulting in
little if any impact on the number of discrimination complaints filed,
or worse, cause confusion for employees with disabilities that could
result in late filing of complaints. The commenters' suggestion
therefore was not incorporated into the Rule.
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\62\ See generally Employee Rights & Appeals: Alternative
Dispute Resolution, Office of Pers. Mgmt., https://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/#url=Alternative-Dispute-Resolution (last visited Dec. 21, 2016)
(discussing alternative dispute resolution); Employee Rights &
Appeals: Appeals, Office of Pers. Mgmt., https://www.opm.gov/policy-data-oversight/employee-relations/employee-rights-appeals/#url=Appeals (last visited Dec. 21, 2016) (discussing the right to
file a complaint of discrimination under the 1614 process and to
file appeals with the Merit Systems Protection Board and U.S. Office
of Special Counsel).
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1614.203(d)(2) Disability Anti-Harassment Policy
Paragraph (d)(2) of the proposed rule required agencies to state
expressly in their anti-harassment policies that disability-based
harassment is prohibited. The Commission received no comments objecting
to the requirement. It therefore has been retained in the Final Rule.
Some commenters stated that the paragraph should also require
agencies to provide training on the disability-based harassment policy.
The Commission is not persuaded that the addition is necessary.
Agencies routinely provide training on their anti-harassment policies.
If, as required under this paragraph, an agency's policy expressly
states that disability-based harassment is prohibited, the training
should naturally address the topic. The Commission notes that
Commissioners Chai R. Feldblum and Victoria A. Lipnic recently
published a report on how agencies and other employers can improve
efforts to prevent harassment that discusses disability-based
harassment throughout, and that includes a section specifically on the
prevalence of disability-based harassment.\63\
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\63\ See Chai R. Feldblum & Victoria A. Lipnic, EEOC, Report of
the Co-Chairs of the Select Task Force on the Study of Harassment in
the Workplace 12-13 (2016), https://www.eeoc.gov/eeoc/task_force/harassment/upload/report.pdf.
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1614.203(d)(3)(i) Reasonable Accommodation: Procedures
Proposed paragraph (d)(3)(i) required agencies to make reasonable
accommodation procedures available to job applicants and employees in
both written and accessible formats. It also required the procedures to
address a minimum of 20 specific topics, including expedited
processing, interim accommodations, reasonable accommodation requests,
confidentiality, processing deadlines, the process for filing
complaints pursuant to 29 CFR 1614.106, and notice of denied requests.
Commenters did not object to the proposal to make reasonable
accommodation procedures available in written and accessible formats.
One commenter stated that the paragraph should require the procedures
to be available online. Recognizing the central importance of online
access in the modern workplace, the paragraph now provides that ``[t]he
Plan shall require the agency to . . . post on its public Web site, and
make available to all job applicants and employees in written and
accessible formats, reasonable accommodation procedures. . . .''
Some commenters suggested adding a statement that ``accessible
formats'' include American Sign Language (ASL). The requirement to make
reasonable accommodation procedures available in written ``and
accessible formats'' was drafted so as not to require the accessible
format to be ``written,'' and to provide job applicants with maximum
flexibility to request a type of accessible format that meets his or
her particular needs. The language is sufficiently general that it
should be interpreted to encompass ASL, as well as documents in Braille
or large print, documents in an electronic format that can be read by
screen reading software, an individual who can read the document aloud,
and other types of accessible formats.
Most of the public comments addressing this paragraph concerned 4
of the 20 required topics--
(d)(3)(i)(B) (redesignated (d)(3)(i)(B) and (d)(3)(i)(C)
\64\): Reassignment. The proposed paragraph required the procedures to
explain that the agency will consider reassignment to a position for
which the employee is qualified, and not just permission to compete for
such a position, as a reasonable accommodation if no other reasonable
accommodation would permit the employee to perform the essential
functions of his or her current position. It also required the
procedures to explain how and where officials should conduct searches
for vacant positions when considering reassignment as a reasonable
accommodation. The Commission has revised the paragraph to clarify that
agencies need only consider reassignment ``to a vacant position'' as a
reasonable accommodation, consistent with 29 CFR 1630.2(o)(2)(ii).
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\64\ For reasons of clarity, the proposed paragraph was split
into 2 paragraphs in the Final Rule.
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Several commenters stated that the paragraph should clarify that
the ``reassignment rule applies to nondiscrimination obligations,''
i.e., that failure to provide reassignment as a reasonable
accommodation may give rise to liability for employment discrimination.
Because each of the 20 required topics pertain to the obligation to
provide reasonable accommodations, which is a nondiscrimination
obligation,\65\ they all in some sense express principles that ``apply
to nondiscrimination obligations.'' The Commission therefore disagrees
that this paragraph in particular should include
[[Page 662]]
the suggested statement. However, in response to the commenters'
concerns, the proposed paragraph has been revised to state that
reassignment ``is'' a reasonable accommodation, and that such
reassignment ``must'' be considered if the agency determines that no
other reasonable accommodation would permit the employee to perform the
essential functions of his or her current position.
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\65\ 42 U.S.C. 12112(b)(5)(A); 29 CFR 1630.9; 29 CFR pt. 1630,
app. 1630.9, .9(e).
---------------------------------------------------------------------------
One commenter stated that the paragraph should clarify that only
employees, and not job applicants, may require reassignment as a
reasonable accommodation. Because the paragraph requires an agency's
procedures to state that it will consider reassignment when the
``employee'' can no longer perform the essential functions of his or
her ``current position,'' no further clarification is required.
One commenter stated that the paragraph should require agencies to
develop and maintain a database of vacant positions within the agency,
and to require that agency officials use the database when considering
whether to provide reassignment as a reasonable accommodation. The
Commission believes that the addition is unnecessary, as long as an
agency ``[n]otif[ies] supervisors and other relevant agency employees
how and where they are to conduct searches for available vacancies when
considering reassignment as a reasonable accommodation'' as required
under revised paragraph (d)(3)(i)(C).
(d)(3)(i)(I) (redesignated (d)(3)(i)(J)): Requests for
supplemental medical documentation. The proposed paragraph required the
procedures to explain the agency's right to request relevant
supplemental medical information if the information submitted by the
requester is insufficient. The Commission has revised the paragraph to
clarify that ``insufficient'' means ``insufficient for the purposes
specified in paragraph (d)(3)(i)(I) of this section'' (referring to the
agency's right to require documentation sufficient to ``explain the
nature of the individual's disability, his or her need for reasonable
accommodation, and how the requested accommodation, if any, will assist
the individual to apply for a job, perform the essential functions of
the job, or enjoy the benefits and privileges of the workplace'').
One commenter stated that the paragraph should cap the number of
times an agency may request supplemental documentation. As explained in
the NPRM, current anti-discrimination law already prohibits agencies
from requesting more documentation than is necessary to establish the
existence of a disability and the need for accommodation.\66\ To the
extent that the proposed cap would further restrict agencies, it would
have the effect of denying them documentation that may be necessary to
carry out the interactive process, potentially resulting in denials of
needed accommodations. Therefore, the Commission has declined to impose
a cap on the number of agency requests for documentation to support an
accommodation request.
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\66\ See, e.g., 13164 Guidance, supra note 15.
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(d)(3)(i)(L) (redesignated (d)(3)(i)(M) and (d)(3)(i)(O)
\67\): Deadlines. The proposed paragraph required the procedures to
designate a maximum amount of time, absent extenuating circumstances,
that the agency has to either provide a requested accommodation or deny
the request. It also required the procedures to explain that the time
limit begins to run when the accommodation is first requested, and
that, where a particular reasonable accommodation can be provided in
less than the maximum amount of time allowed, failure to respond
promptly may result in a violation of the Rehabilitation Act.
---------------------------------------------------------------------------
\67\ For reasons of clarity, the paragraph on deadlines in the
proposed rule was split into 2 paragraphs in the Final Rule.
---------------------------------------------------------------------------
One commenter stated that the Commission should eliminate the time
limit requirement. The suggestion runs counter to longstanding federal
policy. Executive Order 13164 states that each agency's procedures must
``[d]esignate a time period during which reasonable accommodation
requests will be granted or denied, absent extenuating circumstances.''
\68\ As instructed by Executive Order 13164, the Commission provided
further clarification of the requirement in guidance, which is still in
effect.\69\
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\68\ Executive Order No. 13164, supra note 14.
\69\ See 13164 Guidance, supra note 15.
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Some commenters stated that the paragraph should require the
procedures to provide additional information on the types of
extenuating circumstances that would justify a delay in providing a
reasonable accommodation. Commenters stated, for example, that the
procedures should list all possible extenuating circumstances, should
provide that an inability to secure funding is not an extenuating
circumstance, should state that a delay is justified ``[a]s long as
both parties are actively engaged in the interactive process,'' or
should state that a requester's failure to engage in the interactive
process, for example by failing to provide necessary documentation,
constitutes an extenuating circumstance.
Extenuating circumstances are, by definition, factors that cannot
``reasonably have been anticipated or avoided in advance of the request
for accommodation.'' \70\ Thus, it is not possible to specify all such
circumstances in a regulation. In addition, some agencies may define
certain acts or omissions during the interactive process as
``extenuating circumstances,'' while others may not. For example, the
inability to provide equipment needed as a reasonable accommodation
because a vendor has suddenly and unexpectedly gone out of business
might be an extenuating circumstance for a small agency making a
purchase of the equipment for the first time, but not for a large
agency that has extensive experience with providing reasonable
accommodations.
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\70\ Id.
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The Commission therefore believes that it is not possible to create
a definitive list of what constitute extenuating circumstances.
However, a new paragraph has been added at (d)(3)(i)(N) clarifying the
Commission's longstanding position that ``the agency will not be
expected to adhere to its usual timelines if an individual's health
professional fails to provide needed documentation in a timely
manner.'' \71\
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\71\ See id.
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(d)(3)(i)(N) (redesignated (d)(3)(i)(P)): Interim
accommodations. The proposed paragraph required the agency's procedures
to explain that, where a reasonable accommodation cannot be provided
immediately, the agency must provide an interim accommodation whenever
possible.
One commenter stated that the paragraph should not require an
agency's procedures to state an interim accommodation ``must'' be
provided ``whenever possible,'' but rather that the agency will ``seek
to'' provide interim accommodations during a delay. Another commenter
stated that the procedures should not require the agency to provide
interim accommodations if the existence of a disability, the need for
accommodation, and the effectiveness of the proposed accommodation have
not been established.
The Commission disagrees that agencies should only be required to
``seek to'' provide an interim accommodation when there is a delay in
providing a preferred accommodation. Interim accommodations may be
necessary in order to avoid, for example, a worsening of symptoms,
exacerbation
[[Page 663]]
of a medical condition, or pain. They therefore may play a crucial role
in preserving the requesting individual's ability to work. The
Commission also disagrees that interim accommodations should only be
required once the existence of a disability, the need for
accommodation, and the effectiveness of a proposed accommodation have
been established. The term ``establish'' connotes a formal finding.
There may be reasons why an agency does not make a formal finding even
though it is reasonably likely that the requesting individual is
entitled to a reasonable accommodation, such as where a disability is
obvious even though the appropriate accommodation has not been
established.
For the foregoing reasons, the paragraph has been amended to
require an interim accommodation that allows the requesting individual
to perform some or all of the essential functions of his or her job
when ``all the facts and circumstances known to the agency make it
reasonably likely that [the] individual will be entitled to a
reasonable accommodation, . . . [and] it is possible to do so without
imposing undue hardship on the agency.''
Other commenters stated that agencies should be required to address
topics in addition to the 20 proposed in the NPRM in their reasonable
accommodation procedures. For example, commenters stated that the
procedures should be required to explain that employees and applicants
do not need to use ``magic words'' in order to begin the interactive
process; that reasonable accommodations may be available to help
applicants meet qualification standards; that the interactive process
is ``ongoing''; and that employees and job applicants have an
obligation to participate in the interactive process. None of the
requirements were added because they are implicit in existing EEOC
requirements. For example, the requirement to explain that employees
and applicants do not need to use ``magic words'' in order to begin the
interactive process is implicit in the existing requirement to
``[p]rovide guidance to supervisors on how to recognize requests for
reasonable accommodation'' at (b)(i)(3)(G). Moreover, the list of 20
topics is only intended to set a minimum; agencies are free to address
additional topics in the procedures if they wish to do so.
The Commission made an unrequested change to proposed paragraph
(d)(3)(i)(G) (redesignated (d)(3)(i)(H) in the Final Rule), clarifying
that decision makers should communicate with individuals who have
requested a reasonable accommodation early in the interactive process
``and throughout the process.'' The revision does not represent a
change in Commission policy.
1614.203(d)(3)(ii) Reasonable Accommodation: Cost of Accommodations
Paragraph (d)(3)(ii) of the proposed rule required agencies to
inform all employees who are authorized to grant or deny requests for
reasonable accommodation that, pursuant to the regulations implementing
the undue hardship defense at 29 CFR part 1630, all available resources
are considered when determining whether a denial of reasonable
accommodation based on cost is appropriate. As a clarification, this
portion of the paragraph has been revised to state that all available
resources are considered, ``excluding those designated by statute for a
specific purpose that does not include reasonable accommodation.'' The
paragraph also required the agency to ensure that relevant decision-
makers are informed about various external resources that may be used
in providing reasonable accommodations, including, for example, a
centralized fund specifically created by the agency for providing
reasonable accommodations, the Department of Defense Computer and
Electronic Accommodations Program (CAP),\72\ and agency funds that,
although not designated specifically for providing reasonable
accommodations, may be used for that purpose. The purpose of the
paragraph was to ensure that sufficient funds are available for more
costly accommodations when necessary.
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\72\ See generally Computer/Electronic Accommodations Program,
http://www.cap.mil (last visited Aug. 3, 2015).
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Many commenters stated that the paragraph should require a
centralized fund. In the NPRM, the Commission stated that it did not
require a centralized fund due to practical concerns regarding the
precise manner in which an agency's appropriated funds are held,
requested, and disbursed, and due to the fact that centralized funding
does not ensure that sufficient funds are provided for costly
accommodations where, for example, the fund is too small or relevant
decision-makers do not know how to access the fund. The commenters
argued that these concerns could be overcome by, for example, requiring
agencies to base the size of the fund on costs in previous years and
instructing relevant personnel how to access the fund.
The EEOC has supported the use of a centralized fund to pay for
reasonable accommodation.\73\ We think that a centralized fund is one
of the best and easiest ways to ensure that requests for reasonable
accommodation are not denied for reasons of cost, and that individuals
with disabilities are not excluded from employment due to the
anticipated cost of a reasonable accommodation, if the resources
available to the agency as a whole would enable it to provide one
without undue hardship.
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\73\ See, e.g., EEOC, Instructions to Federal Agencies for EEO
MD-715 I (last updated July 20, 2004), http://www.eeoc.gov/federal/directives/715instruct/section1.html (``The Model EEO Program and
Agency Self-Assessment Checklist'').
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However, the Commission is not persuaded that a centralized fund is
the only way to achieve this objective. For example, centralized
contracting vehicles may be an effective alternative. The paragraph has
thus been amended to require agencies to take specific steps--which may
include adoption of a centralized fund--to achieve these goals. The
paragraph further states that such steps must be reasonably designed
to, at a minimum--
ensure that anyone who is authorized to grant or deny
requests for reasonable accommodation or to make hiring decisions is
aware that, pursuant to the regulations implementing the undue hardship
defense at 29 CFR part 1630, all resources available to the agency as a
whole, excluding those designated by statute for a specific purpose
that does not include reasonable accommodation, are considered when
determining whether a denial of reasonable accommodation based on cost
is lawful; and
ensure that anyone authorized to grant or deny requests
for reasonable accommodation or to make hiring decisions is aware of,
and knows how to arrange for the use of, agency resources available to
provide the accommodation, including any centralized fund the agency
may have for that purpose.
The revised paragraph requires agencies to adopt systems that
perform the same valuable functions of centralized funds, while
providing them with flexibility to work within existing budgetary
schemes.
1614.203(d)(3)(iii) Reasonable Accommodation: Notification of Basis for
Denial
Paragraph (d)(3)(iii) of the proposed rule required agencies to
provide a job applicant or employee who is denied a reasonable
accommodations with a written notice that explains the reason
[[Page 664]]
for the denial, notifies the applicant or employee of any available
internal appeal or informal dispute resolution processes, provides
instructions on how to file a complaint of discrimination pursuant to
29 CFR 1614.106, and explains that, pursuant to 29 CFR 1614.105, the
right to file a complaint will be lost unless the job applicant or
employee initiates contact with an EEO Counselor within 45 days of the
denial regardless of whether he or she participates in an informal
dispute resolution process. The paragraph has been amended to clarify
that the notice must be made available in accessible formats.
One commenter stated that agencies should also be required to
provide notices to individuals when they first request reasonable
accommodations, stating that they may file complaints of discrimination
if the agency fails to make a decision on or before a ``date certain.''
The same commenter stated that agencies should also provide notices
whenever they determine that extenuating circumstances justify a delay
in provision of an accommodation.
The intended purpose of the suggested notices appears to be to (a)
inform job applicants and employees who request reasonable
accommodations that, absent extenuating circumstances, the agency must
either provide a reasonable accommodation or deny the request within a
certain number of days; (b) ensure that requesting individuals are
aware of any alleged extenuating circumstances that justify a delay in
providing a reasonable accommodation; and (c) inform requesters that
they have the right to file complaints of discrimination if the agency
fails to meet its deadlines absent extenuating circumstances.
Reasonable accommodation procedures that comply with paragraph
(d)(3)(i) should already satisfy these objectives: (d)(3)(i)(M)
requires the procedures to designate the maximum amount of time the
agency has, absent extenuating circumstances, to either provide a
requested accommodation or deny the request; (d)(3)(i)(S) requires the
agency to notify requesters of any alleged extenuating circumstances
that justify a delay; and (d)(3)(i)(T) requires the agency to explain
the requester's right to file a complaint. The additional notices are
therefore unnecessary.
1614.203(d)(4) Accessibility of Facilities and Technology
Paragraph (d)(4) of the proposed rule required agencies to provide
all employees with contact information for individuals who are
responsible for ensuring agency compliance with Section 508 of the
Rehabilitation Act (Section 508),\74\ which requires all electronic and
information technology purchased, maintained, or used by the agency to
be readily accessible to and usable by people with disabilities, and
for individuals who are responsible for ensuring agency compliance with
the Architectural Barriers Act of 1968 (ABA),\75\ which requires the
agency to ensure that its facilities are physically accessible to
people with disabilities. It also required agencies to provide clear
instructions on how to file complaints alleging violations of those
laws, and to assist individuals with filing complaints against another
federal agency when an investigation has shown that such other agency
is responsible for the alleged violation. The paragraph does not
require the agency to provide legal advice, or to represent individuals
in complaints against other agencies; it merely requires agencies to
provide contact information. The paragraph has been modified to clarify
that the information must be available in accessible formats, and that
it should be available online.
---------------------------------------------------------------------------
\74\ 29 U.S.C. 794d.
\75\ 42 U.S.C. 4151-4157.
---------------------------------------------------------------------------
Some commenters stated that the paragraph should require agencies
to provide the information to new hires ``immediately.'' The paragraph
requires agencies to provide the information to ``all'' employees.
Because ``all'' employees include newly hired employees, no change was
required.
Some commenters stated that the paragraph should require agencies
to inform employees of their substantive rights under Section 508 and
the ABA, in addition to their enforcement rights under those laws.
Because employees may be equally unaware of their substantive rights
and their enforcement rights under Section 508 and the ABA, the revised
paragraph requires agencies to provide employees with information on
both. Again, the paragraph does not require agencies to provide legal
advice or represent the individual. Agencies may satisfy this
requirement by providing Internet links to existing resources on
Section 508 and the ABA.
Other commenters stated that the requirement to ``assist''
individuals with filing complaints against other agencies was unclear,
and that, to the extent that it was intended to require agencies to act
as advocates for, or advisors to, individuals in actions against other
agencies, it should be struck. The paragraph was not intended to
require agencies to act as advocates for employees in actions against
other agencies. The paragraph has been modified to clarify that
agencies are only required to provide information on where to file a
complaint against another agency when an investigation shows that such
other agency is responsible for an alleged violation.
1614.203(d)(5) Personal Services Allowing Employees To Participate in
the Workplace
Currently, agencies are required to provide certain job-related
services to individuals with disabilities as reasonable accommodations
if doing so would enable them to apply for a job, perform job
functions, or enjoy the benefits and privileges of employment, absent
undue hardship. For example, an agency may be required to provide sign
language interpreters, readers, assistance with note taking or
photocopying, or permission to use a job coach as a reasonable
accommodation.\76\ However, provision of PAS that are needed on the
job, such as assistance with eating or using the restroom, is not
considered a reasonable accommodation under the ADA or as a matter of
nondiscrimination under Section 501.
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\76\ See 29 CFR pt. 1630, app. 1630.9.
---------------------------------------------------------------------------
The NPRM proposed to place this obligation on agencies as an
affirmative action requirement under Section 501. Paragraph (d)(5) of
the proposed rule required agencies to provide PAS, such as assistance
with removing and putting on clothing, eating, and using the restroom,
to employees who need them because of a disability during work hours
and job-related travel, unless doing so would impose undue hardship. It
further provided that agencies are permitted to assign PAS providers to
more than one individual with a disability, and to require them to do
non-PAS tasks as time permits. In addition, the NPRM requested public
input on (a) whether the description of PAS in the proposed paragraph
was adequate; (b) whether the requirement to provide PAS should be kept
in the Final Rule; (c) whether individuals who provide PAS should be
assigned to particular individuals or, instead, asked to provide
services to multiple individuals as needed; and (d) whether the agency
should be allowed to assign other tasks to PAS providers when no
personal assistance is needed.
Many commenters responding to the question of whether the NPRM's
description of PAS was adequate complained that the description was
vague. Commenters offered various suggestions for making the
description more precise--some stated that it
[[Page 665]]
should include additional examples, one stated that it should exclude
medical services, one stated that the list of examples should be
exhaustive, and two stated that the paragraph should incorporate
language used in the definition of PAS given elsewhere in the
Rehabilitation Act.\77\
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\77\ See 29 U.S.C. 705(28) (``The term `personal assistance
services' means a range of services, provided by one or more
persons, designed to assist an individual with a disability to
perform daily living activities on or off the job that the
individual would typically perform if the individual did not have a
disability. Such services shall be designed to increase the
individual's control in life and ability to perform everyday
activities on or off the job.'').
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The Commission has chosen the last option. The term ``personal
assistance services,'' as it is used in the disability community,
expresses an open-ended concept. It is therefore not possible to
provide an exhaustive list of examples, and addition of a few examples
will necessarily fail to capture the full meaning. New paragraph (a)(5)
thus provides that the term ``personal assistance services'' means
``assistance with performing activities of daily living that an
individual would typically perform if he or she did not have a
disability, and that is not otherwise required as a reasonable
accommodation, including, for example, assistance with removing and
putting on clothing, eating, and using the restroom.'' New paragraph
(a)(4) defines the related term ``personal assistance service
provider'' to mean ``an employee or independent contractor whose
primary job functions include provision of personal assistance
services.''
Comments on whether the PAS requirement should be kept in the Final
Rule were mixed. Many disability advocacy organizations and individuals
strongly favored the requirement, emphasizing that a lack of PAS in the
workplace poses a major barrier to employment for some individuals with
disabilities. Other commenters objected. Some argued that the
associated costs would be too high. Some argued that the Commission
lacks the authority to impose the requirement. Others objected that
compliance with the requirement would be extremely difficult or
impossible because, for example, it would require agencies to violate
appropriations and antideficiency laws; require them to coordinate with
local nursing boards; lead to the depletion of reasonable accommodation
funds; result in reduced hiring of individuals with disabilities;
conflict with merit systems principles and veterans' preference rules,
at least to the extent that it would require agencies to hire providers
chosen by the individuals who need them; require agencies to provide
services in a variety of locations; or lead to the hiring and retention
of unqualified employees.
The Final Rule retains the requirement to provide PAS during work
hours \78\ and job-related travel, absent undue hardship, and further
clarifies in revised paragraph (d)(5)(iii) that agencies may not take
adverse actions against job applicants and employees on the basis of
their need, or perceived need, for PAS. Public comments from advocacy
organizations and individuals confirm that lack of PAS in the workplace
and/or the fear of losing PAS provided by means-tested assistance
programs are stubborn and persistent barriers to employment for
individuals with certain disabilities. For many individuals with
targeted disabilities such as paralysis or cerebral palsy, full
participation in the workplace is impossible without PAS.
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\78\ Work hours include time that an employee is teleworking,
whether the telework is part of an agency telework program available
to all employees or is being provided as a reasonable accommodation.
The Commission sees no legal reason to treat the provision of PAS
for workers who are teleworking any differently from the provision
of other services by individuals as a reasonable accommodations,
such as sign language interpreters and readers. Determinations of
whether PAS can be provided to an employee who is teleworking
without undue hardship should be made on a case-by-case basis, as
are decisions about reasonable accommodations.
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The Commission is not persuaded by the objections raised by
commenters. First, the issue of cost is addressed in the section on
Executive Orders 13563 and 12866 below. Second, we disagree that the
Commission lacks authority to impose the requirement. As explained
above, the Commission has Section 501 rulemaking authority under
Section 505 and Executive Order 12067, and, having found that its prior
regulatory and subregulatory guidance was not sufficiently advancing
the employment of qualified individuals with disabilities, here
exercises its authority to strengthen the regulations implementing the
Section 501 affirmative action requirement.\79\ Because public comments
confirm that a lack of PAS in the workplace is a persistent barrier to
employment for individuals with certain significant disabilities, one
of the ways in which the regulation is being strengthened is by
requiring agencies to provide PAS to individuals who need them during
work hours and job-related travel, absent undue hardship.
---------------------------------------------------------------------------
\79\ See supra notes 37-44 and accompanying text.
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Third, as to the arguments that compliance would be extremely
difficult or impossible, the Commission notes as it did in the preamble
to the proposed rule that several federal agencies currently provide
PAS on a voluntary basis, and have been doing so for decades without
any of the negative consequences imagined by commenters.\80\
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\80\ The Commission provides personal assistant services to
employees with disabilities who require them. The Department of
Labor, the Department of Transportation, and the Department of
Justice's Civil Rights Division also provide workplace PAS for
employees with disabilities. See Department of Labor statement of
work on providing personal assistance services as a reasonable
accommodation for qualified Department of Labor employees with
disabilities (2014) [hereinafter DOL statement] (on file with the
Commission); Dep't of Transp., Disability Resource Center Services
Handbook (Nov. 2014), http://www.transportation.gov/individuals/disability/disability-resource-center-drc-services-handbook
(providing guidance to the Department of Transportation on meeting
its obligations regarding the retention and promotion of individuals
with disabilities by providing personal assistance and other
services); Civil Rights Div., U.S. Dep't of Justice, Reasonable
Accommodation Manual A.2.5 (n.d.) (on file with the Commission)
(providing that the Civil Rights Division will provide part-time
personal care attendants at work or on official travel when
necessary and otherwise reasonable).
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Responses to the question of whether PAS providers should be
assigned to single individuals or to multiple individuals were mixed.
Some stated that providers should be assigned to single individuals
because (a) PAS are often required on very short notice, (b) receipt of
PAS from multiple providers is likely to make the individual with a
disability feel uncomfortable, and (c) services are improved if the
provider is familiar with the individual's needs. Others stated that
agencies should be given maximum flexibility. Commenters were more
uniformly in favor of allowing agencies to assign non-PAS tasks to PAS
providers, as long as the PAS-related assignments were given higher
priority. One commenter disagreed, arguing that assignment of both PAS
and non-PAS tasks to a single individual would create practical
problems in contracting, creation of position descriptions, and
performance assessment.
In both respects, the Final Rule grants flexibility to agencies in
revised paragraph (d)(5)(ii). Again the Commission looks to actual
practice for guidance. Federal agencies have used a variety of models
for providing PAS to equal effect. The Commission, for example, has
hired federal employees to provide PAS to individuals with disabilities
on a one-to-one basis, whereas the Department of Labor has contracted
for a pool of qualified personnel to provide PAS and other services to
multiple employees.\81\ Moreover, if an agency finds that a
[[Page 666]]
particular approach is impracticable or does not meet employees' needs,
the paragraph permits the agency to adopt an alternative approach.
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\81\ DOL statement, supra note 80.
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Other comments on the requirement raised the following issues:
Eligibility. Some stated that an agency should only be
required to provide PAS to individuals who are qualified to perform
their jobs. Although the Commission does not believe that the proposed
paragraph provided otherwise, it has been revised to state that
agencies are required to provide PAS only if they ``would, together
with any reasonable accommodations required under [29 CFR] part 1630 .
. ., enable the employee to perform the essential functions of his or
her position.'' \82\
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\82\ 29 CFR 1630.203(5)(i)(B), as amended.
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Other commenters stated that an agency should only be required to
provide PAS to individuals who have targeted disabilities. As discussed
in the NPRM, the Commission believes that individuals who do not have
targeted disabilities will not require PAS in order to participate in
the workplace.\83\ The paragraph has therefore been revised in the
manner suggested.
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\83\ Affirmative Action for Individuals with Disabilities in the
Federal Government, 81 FR 9123, 9134 n.101 (Feb. 24, 2016) (to be
codified at 29 CFR 1614.203, .601(f)).
---------------------------------------------------------------------------
Additional services. Some commenters stated that the
paragraph should require agencies to provide additional services to
employees with disabilities, including help with getting to and from
work, identifying transportation options and accessing transportation,
assistance with becoming familiar with surroundings, and
``informational and navigational awareness, as well as lightweight
communication.'' The commenters did not, however, cite to any studies
or other objective sources establishing that such services would
significantly improve employment of individuals with disabilities, or
to any data on which to base an estimate of the economic impact of the
requirement. The Commission has not incorporated these suggestions.
A significant number of commenters stated that the Rule should
require agencies to permit employees with disabilities to use job
coaches and other forms of supported employment paid for by outside
sources. The Commission strongly endorses the use of supported
employment. Indeed, permission to use a job coach or other forms of
supported employment is a reasonable accommodation that may be required
if such a person needs those services to perform the essential
functions of a position and if providing those services does not impose
an undue hardship on the agency.\84\ As explained above, however, the
Commission believes that it would be inappropriate to provide guidance
on nondiscrimination requirements applicable to federal agencies, as
well as to private and state and local government employers, in a
regulation that applies to the affirmative action obligations of
federal agencies.
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\84\ See 29 CFR pt. 1630, app. 1630.9.
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Undue hardship exception. One commenter stated that
agencies should not be required to establish undue hardship in order to
deny a request for PAS, because, given the fact that they typically
have very large budgets, agencies ``will have very limited ability to
deny such requests . . . regardless of the nature of the request.'' The
commenter did not suggest an alternative standard.
The Commission disagrees with the commenter's characterization.
First, the paragraph does not require agencies to provide PAS to
individuals who request them ``regardless of the nature of the
request.'' The paragraph only requires agencies to provide personal
assistants, who will assist the employee with eating, using the
restroom, and similar activities to individuals who need them because
of a targeted disability; it does not require agencies to provide
services that the individual does not need in order to participate in
the workplace, or services that are needed for reasons other than
disability. Second, agencies may be able to establish undue hardship
for reasons other than cost.\85\
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\85\ EEOC, Enforcement Guidance: Reasonable Accommodation and
Undue Hardship Under the Americans with Disabilities Act (2002),
https://www.eeoc.gov/policy/docs/accommodation.html#undue.
---------------------------------------------------------------------------
Selection and evaluation of personal assistance service
provider. Some commenters stated that the paragraph should require PAS
providers to meet certain qualification standards, such as those
imposed by OPM for all government employees and specific standards
based on experience and training. Others stated that an agency should
be required to consult with individuals who receive PAS during their
providers' performance reviews.
These requirements were not incorporated into the Rule because they
primarily concern OPM functions. EEOC is not in the best position to
determine what qualifications PAS providers have to possess, and we do
not wish to limit unduly the choices of employees who may want to work
with a PAS provider who may not necessarily possess specific
certifications or credentials. This is similar to the approach the
Commission has taken under the ADA with respect to sign language
interpreters and readers provided as reasonable accommodations.
However, the revised paragraph does provide that PAS must be provided
by a personal assistance service provider, meaning an employee or
independent contractor whose primary job functions include provision of
personal assistance services at (d)(5)(ii).
Some commenters stated that the paragraph should require agencies
to consider the preferences of individuals with disabilities when
selecting their PAS providers. The Commission agrees and notes that
this is the same principle that applies when an employer is choosing
from among available accommodations.\86\ New paragraph (d)(5)(iv)
requires agencies, when selecting someone to provide personal
assistance services to a single individual, to give primary
consideration to the individual's preferences to the extent permitted
by law.
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\86\ See 29 CFR pt. 1630, app. 1630.9.
---------------------------------------------------------------------------
Process for requesting PAS. Some commenters stated that
the paragraph should require agencies to have written procedures for
processing PAS requests, similar to the reasonable accommodation
procedures required under paragraph (d)(4). Some stated more
specifically that agencies should be permitted to require medical
documentation, be required to use a centralized fund, or be required to
consult with vocational rehabilitation agencies during the process.
The Commission agrees that agencies should have procedures for
processing requests for PAS. Paragraph (d)(5)(v) of the Final Rule
requires agencies to adopt such procedures, and to make them available
online and in written and accessible formats. Because the intent of the
Rule is to require agencies to treat PAS requests like requests for
reasonable accommodation, the paragraph further provides that agencies
may satisfy the requirement by stating in their reasonable
accommodation procedures that the process for requesting personal
assistance services, the process for determining whether such services
are required, and the agency's right to deny such requests when
provision of the services would pose an undue hardship, are the same as
for reasonable accommodations.
[[Page 667]]
1614.203(d)(6) and 1614.203(d)(7)(i) Utilization analysis and goals
Paragraph (d)(7)(i) of the proposed rule required agencies to adopt
the goal of achieving a 12% representation rate for people with
disabilities at the GS-11 level \87\ and above, including the Senior
Executive Service (SES); \88\ a 12% representation rate for people with
disabilities at the GS-10 level and below; a 2% representation rate for
individuals with targeted disabilities at the GS-11 level and above,
including the SES; and a 2% representation rate for people with
targeted disabilities at the GS-10 level and below. Paragraph (d)(6)
required agencies to perform the workforce analysis necessary to
determine whether these goals have been met annually, based on SF-256
records, records of requests for reasonable accommodation, and records
of appointments under hiring authorities that take disability into
account. In addition, the NPRM asked for public input on whether the
proposed goals were appropriate, and whether there are any data showing
that the goals should be raised or lowered.
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\87\ Most federal employees are part of the General Schedule
(GS) pay system. The General Schedule has fifteen grades--GS-1
(lowest) to GS-15 (highest). See generally General Schedule
Classification and Pay, Office of Pers. Mgmt., http://www.opm.gov/policy-data-oversight/pay-leave/pay-systems/general-schedule/ (last
visited Dec. 21, 2016).
\88\ High-level leadership positions in the federal government
are occupied by members of the SES. SES members have a different pay
scale than employees who are part of the GS pay system. See
generally Senior Executive Service: Leading America's Workforce,
Office of Pers. Mgmt., http://www.opm.gov/policy-data-oversight/senior-executive-service/ (last visited Dec. 21, 2016).
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The Commission received a small number of comments requesting
clarification of the proposed goals. One commenter asked whether the 2%
goals were intended to be sub-goals of the 12% goals, i.e., whether the
individuals who are counted as individuals with targeted disabilities
for purposes of determining whether a 2% goal has been met may also be
counted as individuals with disabilities for purposes of determining
whether a 12% goal has been met.
The 2% goals are intended to be sub-goals. Disabilities that fall
under the term ``targeted disability'' are a subset of those that fall
under the term ``disability'' as defined under Section 501. Thus, any
employee who has a targeted disability, and who therefore counts toward
a 2% goal for individuals with targeted disabilities, will necessarily
have a condition that meets the Section 501 definition of
``disability,'' and will therefore also count toward the 12% goal for
individuals with disabilities.
Another commenter asked whether the fact that the NPRM proposed a
12% goal for individuals with disabilities at the GS-11 level and
above, and a 12% goal for individuals with disabilities at the GS-10
level and below, meant that it proposed a 24% overall goal for
individuals with disabilities. Similarly, the commenter wondered
whether the 2% goals ``combined'' to create a 4% overall goal for
individuals with targeted disabilities. Because each 12% and each 2%
goal applies to a different segment of the workforce, the Rule does not
impose goals of 24% and 4% overall.\89\
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\89\ Where X represents the total number of employees on the GS
and SES scales and Y represents the total number of employees
employed at the GS-10 level and below, 0.02(Y) + 0.02(X - Y) =
0.02(X); 0.12(Y) + 0.12(X - Y) = 0.12(X).
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A small number of commenters stated that the goals should not be
retained in the Final Rule because the proposed methods of measuring
agencies' representation rates--SF-256 records, reasonable
accommodation records, and documentation relating to appointment of
individuals under hiring authorities that take disability into
account--are inaccurate. SF-256 data, according to commenters, are
especially likely to underestimate representation rates for individuals
with disabilities and individuals with targeted disabilities because
many employees are reluctant to disclose disabilities using this form.
Some stated that a greater number of employees would self-disclose if,
for example, the form did not ask the individual to indicate his or her
specific type of disability, or if it included questions on topics
other than disability.
The Commission acknowledged in the NPRM that SF-256 data are likely
to underestimate representation rates for individuals with disabilities
and individuals with targeted disabilities, and, for that reason, used
prior SF-256 data as a starting point when it developed the goals.\90\
As discussed, SF-256 data themselves (together with other data that
agencies are permitted to use under (d)(6)) indicate that the federal
government as a whole has achieved representation rates that are close
to 12% for individuals with disabilities and 2% for individuals with
targeted disabilities; actual representation rates may be much larger.
The Commission also reminds agencies that they have the discretion to
periodically request employees to respond to voluntary surveys updating
their SF-256 information. If accompanied by an explanation of why self-
reporting is important, resurveying can enhance data accuracy. The
Commission therefore is not persuaded that the proposed goals are
overly burdensome due to problems of measurement.
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\90\ Affirmative Action for Individuals with Disabilities in the
Federal Government, 81 FR 9123, 9128-29 (Feb. 24, 2016) (to be
codified at 29 CFR 1614.203, .601(f)).
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However, the Commission does acknowledge commenters' assertions
that there may be ways to improve the accuracy of self-reported data,
for example by asking individuals to indicate whether they have
disabilities or targeted disabilities without asking for more detailed
information. The Commission is not able to amend the SF-256, as
suggested by some commenters, because OPM controls the content of the
SF-256. Nor can the Commission require OPM to establish an
``authoritative'' system for tracking disability information, as
suggested by another commenter.
Instead, the Final Rule allows, but does not require, agencies to
collect disability information using forms other than the SF-256.
Paragraph (d)(6)(ii)(A) has thus been amended to allow agencies to
classify individuals for purposes of the workforce analysis based on
``[t]he individual's self-identification as an individual with a
disability or an individual with a targeted disability on a form,
including but not limited to the Office of Personnel Management's
Standard Form 256, which states that the information collected will be
kept confidential and used only for statistical purposes, and that
completion of the form is voluntary.'' \91\ The paragraph permits
agencies to design their own forms or use existing forms as
appropriate. For example, agencies are permitted to use the approach
taken in EEOC's Applicant Flow Form. This form asks, among other
things, whether the individual has a non-targeted disability. It does
not, however, require the individual to identify which non-targeted
disability he or she has.\92\ The Final Rule also
[[Page 668]]
makes conforming amendments to 29 CFR 1614.601(f) (discussed
below).\93\
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\91\ The other records discussed in this paragraph will also be
kept confidential, because they are subject to the Privacy Act. See
5 U.S.C. 552a. Additionally, records relating to reasonable
accommodation are subject to the ADA's confidentiality requirements,
as incorporated. See 42 U.S.C. 12112(d)(4)(A) (imposing the
requirements); 29 U.S.C. 791(f) (incorporating the requirements into
Section 501); 29 CFR 1630.14(c) (implementing the requirements); 29
CFR pt. 1630, app. 1630.14(c) (discussing the requirements); 29 CFR
1614.203(b) (incorporating the ADA regulations at 29 CFR pt. 1630
into the Section 501 regulations).
\92\ Applicant Flow Form, supra note 4, at 3.
\93\ One commenter stated that current regulations at 29 CFR
part 1630 should also be amended, because those regulations
generally prohibit agencies from asking disability-related
questions, as would be required under (d)(6). The Commission
disagrees. The anti-discrimination regulations permit agencies (and
employers generally) to ask disability-related questions for
purposes of engaging in affirmative action for individuals with
disabilities. Cf. Assoc. Builders & Contractors, Inc. v. Shiu, 30 F.
Supp. 3d 25, 37-38 (D.D.C. 2014) (holding that the ADA does not
prohibit federal contractors from inviting job applicants to self-
identify as individuals with disabilities pursuant to regulations
implementing the affirmative action requirement imposed on federal
contractors by Section 503), aff'd, 773 F.3d 257 (D.C. Cir. 2014);
Letter from Peggy R. Mastroianni, Legal Counsel, EEOC, to Patricia A
Shiu, Director, Office of Fed. Contract Compliance Programs, Dep't
of Labor (Aug. 8, 2013), http://www.dol.gov/ofccp/regs/compliance/section503.htm (follow ``EEOC Opinion on the Invitation to Self-
Identify'' hyperlink) (discussing job applicants).
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One commenter argued that the goals should be eliminated for
agencies that have limited opportunities to use the Schedule A hiring
authority for persons with certain disabilities, and for small agencies
that typically draw from a small applicant pool. The commenter also
argued that small agencies should be exempted because it is sometimes
possible to determine which employees within the agency have a
disability based solely on aggregate data, which, according to the
commenter, may result in ``per se violations of [the confidentiality
requirements of] the Rehabilitation Act.''
The Final Rule does not include exemptions for agencies that have
limited opportunities to use the Schedule A hiring authority for
persons with certain disabilities or for small agencies. The Commission
believes that all agencies are able to take steps to improve employment
opportunities for individuals with disabilities, including targeted
disabilities. Agencies that have limited opportunities to use the
Schedule A hiring authority for persons with certain disabilities may
still, for example, take steps to improve the application process as
required under (d)(1)(ii); adopt advancement programs as required under
(d)(1)(iii), and take other actions recommended under (d)(7)(ii) to the
extent permitted by law. Agencies that typically draw from a small
applicant pool may take steps to expand the pool, as required under
(d)(1)(i). These and other steps specified throughout paragraph (d) are
all that the Rule requires of an agency that fails to achieve a goal--
paragraph (f)(2) (discussed below) provides that ``failure to achieve a
goal set forth in paragraph (d)(7) of the Rule, by itself, is not
grounds for disapproval unless the Plan fails to require the agency to
take specific steps that are reasonably designed to achieve the goal.''
The Commission does not see how compliance with the goal
requirements could lead to ``per se violations of the Rehabilitation
Act.'' The commenter appears to have assumed that the Rule requires
agencies to make detailed, grade-level-by-grade-level disability
information available to the public. It does not. The Rule only
requires agencies to publish representation rates for people with
disabilities and people with targeted disabilities in two broadly
defined groups. Moreover, nothing in the Rule requires an individual
with a disability to self-identify as such; if an individual does not
wish to disclose his or her disability status, he or she need not fill
out the SF-256 or similar forms.
One commenter stated that agencies should be allowed to set their
own goals. After the ANPRM public comment period, the Commission
decided to adopt government-wide goals in the proposed rule.\94\ The
commenter did not provide any basis on which to overturn that decision.
Upon further consideration, the Commission has determined that the
proposed government-wide approach continues to be the most appropriate
one.
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\94\ See Affirmative Action for Individuals with Disabilities in
the Federal Government, 81 FR at 9128.
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Most commenters responding to the question of whether the proposed
goals were appropriate stated that they were too low. These commenters
generally argued that, because existing representation rates for
individuals with disabilities and individuals with targeted
disabilities are already close to 12% and 2% respectively, the proposed
goals would merely ``maintain the status quo.'' \95\
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\95\ For example, commenters cited a recent OPM report finding
that 14.64% of federal employees have reportable disabilities, 18.8%
of federal employees at the GS-10 level and below have disabilities,
12.6% of federal employees at the GS-11 level and above have
disabilities, 1.18% of federal employees have targeted disabilities,
1.91% of federal employees at the GS-10 level and below have
targeted disabilities, and 0.8% of federal employees at the GS-11
level and above have targeted disabilities, see Office of Pers.
Mgmt., Report on the Employment of Individuals with Disabilities in
the Federal Executive Branch: Fiscal Year 2014, 25 (Oct. 9, 2015),
https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reports/disability-report-fy2014.pdf [hereinafter 2014 Report], and
a recent survey indicating that 13.5% of federal employees have
disabilities, Governmentwide Unweighted Results: Demographic, Items
85-98, Office of Pers. Mgmt., http://www.fedview.opm.gov/2014/Reports/ResponsePCT.asp?AGY=ALL&SECT=8 (last visited Dec. 8, 2016).
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The Commission disagrees that the proposed goals would merely
``maintain the status quo.'' Although it is true that the federal
government as a whole has achieved representation rates of close to 12%
and 2%, many individual agencies have not.\96\ For these agencies,
meeting the goals would represent significant improvement. Further,
because the goals apply at both higher and lower levels of employment,
agencies that employ a disproportionately high number of individuals
with disabilities in lower paying positions would also see significant
improvement by meeting the goals. As noted in the NPRM, the
representation rates for individuals with disabilities and individuals
with targeted disabilities are significantly lower at the GS-11 level
and above than at the GS-10 level and below.\97\
---------------------------------------------------------------------------
\96\ See, e.g., 2014 Report, supra note 95, at 10.
\97\ See id. at 25.
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Additionally, the commenters failed to identify any data on which
the Commission could reasonably base higher goals. Many commenters
simply picked numbers without justification. Some commenters stated
that the Commission should ``look to those agencies that have done the
best job of employing people with disabilities, as well as workforce
data'' to set the goals, but provided no explanation as to how this
could reasonably be done, and instead chose goals that did not appear
to be connected either with agency benchmarks or with workforce
data.\98\ One commenter stated that the goals should be based on census
data. However, the census definition of ``disability'' matches neither
the Section 501 definition of ``disability'' nor the definition of
``targeted disability'' under paragraph (a).\99\ Census data,
therefore, are inapposite. Because commenters failed to identify any
reasonable alternatives, and because the Commission believes that the
12% and 2% goals are based on the best available data, the Final Rule
retains goals of 12% for individuals with disabilities and 2% for
individuals with targeted disabilities.
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\98\ These commenters recommended goals of ``at least'' 15% for
people with disabilities and 4% for people with targeted
disabilities.
\99\ The ACS collects disability data by asking a series of
questions such as whether, due to a physical, mental, or emotional
problem, the person has ``serious difficulty'' hearing, seeing (even
with glasses), remembering, concentrating, or making decisions,
walking or climbing stairs, bathing or dressing, and/or doing
errands alone. See American Community Survey (ACS), U.S. Census
Bureau, https://www.census.gov/people/disability/methodology/acs.html (last visited Dec. 21, 2016).
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Some commenters stated that the goals should be extended to
employees who are on neither the GS nor the SES scale. We agree.
However, to avoid the difficulties inherent in establishing
``equivalencies'' across differing pay
[[Page 669]]
scales, the Commission has decided to classify non-GS employees using a
simple pay cutoff. The revised paragraph thus requires agencies to
adopt 12% and 2% goals for ``employees at the GS-11 level and above,
together with employees who are not paid under the General Schedule but
who have salaries equal to or greater than employees at the GS-11, step
1 \100\ level in the Washington, DC locality'' \101\ and ``employees at
the GS-10 level and below, together with employees who are not paid
under the General Schedule but who have salaries less than employees at
the GS-11, step 1 level in the Washington, DC locality.'' Express
reference to the SES was removed from the paragraph because SES
employees are included in the category of ``employees who are not paid
under the General Schedule but who have salaries equal to or greater
than employees at the GS-11, step 1 level in the Washington, DC
locality.''
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\100\ Pay rates for employees at a given GS level depend on the
within-grade level, or ``step,'' of the employee, which ranges
between one and ten, and on the geographic location of the employee.
See generally General Schedule Classification and Pay, supra note
87.
\101\ The rate of pay for employees on the GS and SES scales is
determined by adding a ``locality adjustment'' to a base rate. See
generally Pay & Leave: Salaries & Wages, Office of Pers. Mgmt.,
https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/2016/general-schedule/ (last visited Dec. 21, 2016) (discussing
alternative dispute resolution). Washington, DC is currently in the
``Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA region.''
Id. The Rule refers to the ``Washington, DC locality'' in the event
that the locality is renamed or defined differently in the future.
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Some commenters stated that the Rule should impose separate goals
for each individual grade level, or for each individual job series and
grade level. The Commission does not believe that the additional burden
on agencies of meeting such goals would substantially promote the
hiring, retention, and advancement of individuals with disabilities and
individuals with targeted disabilities. For example, we see no reason
to require agencies to have the same percentage of individuals with
disabilities at both the GS-4 and GS-5 levels, and we are unsure what
inference should be drawn from the fact that an agency employs a
disproportionately low number of individuals at the GS-12 level, for
example, but not at the GS-13 level. Of course, significant disparities
in the distribution of individuals with disabilities or individuals
with targeted disabilities within the pay grouping may raise concerns.
For example, an agency that meets goals for the employment of people
with targeted disabilities in both pay groupings, but that employs most
such individuals at the GS-1 through GS-4 and GS-11 through GS-12
levels, is probably insufficiently attentive to its obligations to
provide advancement opportunities. However, absent evidence at this
time that agencies would attempt to circumvent their affirmative action
obligations in this way, the Rule continues to group employees
according to whether they are employed at higher or lower levels,
rather than according to individual grade level and job series, for
purposes of meeting the (d)(7)(i) goals.
Two commenters stated that federal jobs ``limit[ing] advancement,
or segregat[ing] federal workers on the basis of disability (including
segregation into separate work areas or separate lines of
advancement)'' should not count toward achievement of the goals. We
assume that the commenters are referring to positions that ``limit,
segregate, or classify a job applicant or employee in a way that
adversely affects his or her employment opportunities or status on the
basis of disability'' in violation of Section 501's nondiscrimination
requirements.\102\ Although we agree with the general principle that an
agency should not benefit from employing individuals with disabilities
if the agency also discriminates against them, we believe that the
appropriate response in these cases is to challenge the discriminatory
behavior under 29 CFR 1614.106.
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\102\ 42 U.S.C. 12112(b)(1); 29 CFR 1630.5.
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Some commenters stated that the Rule should establish a deadline
for achieving the goals. The Commission disagrees. As noted in the
NPRM, there are many reasons why it may take some agencies more time
than others to meet the utilization goals, such as budgetary
constraints (including hiring freezes), the number of additional
individuals with targeted disabilities that would have to be hired to
achieve the goals, and the nature of certain jobs within an agency's
workforce that may include valid physical standards that individuals
with certain disabilities may not be able to meet.
Some commenters stated that the paragraph should require agencies
to adopt other types of goals in addition to, or instead of,
representation rate goals--
Hiring and promotion goals. Some commenters stated that
certain percentages of each agency's new hires should be, and certain
percentages of each agency's promotions should be given to, individuals
with disabilities and individuals with targeted disabilities. As
applied to agencies that underperform with respect to employment of
individuals with disabilities and individuals with targeted
disabilities, hiring and retention goals do not impose more stringent
requirements than the corresponding representation rate goals. They
were therefore not added.
Retention rate goals. One commenter stated that agencies
should be required to adopt the goal of having a retention rate for
employees who were appointed under the Schedule A hiring authority for
persons with certain disabilities that is equal to or greater than the
retention rate for other employees. The Commission lacks any data
establishing what the retention rate for individuals who were appointed
under the Schedule A hiring authority for persons with certain
disabilities should be. Further, a function of paragraphs (d)(8)(iv)
and (d)(8)(v), requiring agencies to keep detailed records on
individuals who were appointed under the Schedule A hiring authority
for persons with certain disabilities, and paragraph (d)(1)(iii),
requiring agencies to report data regarding such individuals, is to
ensure that both individuals within the agency and the Commission will
be alerted if the agency is experiencing problems with retention. The
Commission concludes that a separate goal is unnecessary.
Goals for utilization of supported employment. Some
commenters stated that the Rule should impose goals for hiring and
employment of individuals receiving supported employment services. The
commenter cited no evidence that such goals would eliminate a
significant barrier to employment for a large number of individuals
with disabilities, and neither stated what percentage the goal should
be nor provided any data on which to base the goal. However, in light
of the commenters' observation that there is an evidence base showing
that supported employment services are an effective way to maintain
employment for many individuals with disabilities, provision of such
services has been added as an example of a strategy that an agency may
use to increase the number of employees with disabilities and targeted
disabilities in paragraph (d)(7)(ii), discussed below.
1614.203(d)(7)(ii) Progression Toward Goals
Proposed paragraph (d)(7)(ii) required agencies that fail to meet
one or more goals required under paragraph (d)(7)(i) to take specific
steps that are reasonably designed to gradually increase the number of
employees with disabilities and targeted disabilities, examples of
[[Page 670]]
which included increased use of hiring authorities that take disability
into account; consideration of disability or targeted disability status
as a positive factor in hiring, promotion, or assignment decisions, to
the extent permitted by law; additional outreach and recruitment
efforts; adoption of training, internship, and mentoring programs for
individuals with disabilities; and disability-related training for all
employees. Agencies interested in the last example are encouraged to
review the components of effective harassment prevention training set
forth in the report issued by Commissioners Feldblum and Lipnic in June
2016.\103\ For reasons indicated in the section immediately above,
``[i]ncreased efforts to hire and retain individuals who require
supported employment because of a disability, who have retained the
services of a job coach at their own expense or at the expense of a
third party, and who may be given permission to use the job coach
during work hours as a reasonable accommodation without imposing undue
hardship on the agency'' has been added as an example.
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\103\ See Chai R. Feldblum & Victoria A. Lipnic, supra note 63.
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One commenter asked whether the paragraph requires agencies that do
not meet the goals to hire individuals with disabilities or individuals
with targeted disabilities who are not qualified for the job, or who
are less qualified than other candidates. It does not. Hiring
authorities that take disability into account do not provide agencies
with a means of hiring individuals who are unqualified, and agencies
are not required to hire individuals who are unqualified in order to,
for example, provide disability-related training for all employees,
engage in additional outreach and recruitment efforts, or adopt
training, internship, or mentoring programs for individuals with
disabilities.
Some commenters stated that agencies should always be required to
consider disability status and targeted disability status as positive
factors in hiring, promotion, and employment decisions, regardless of
whether the agency has failed to meet a goal. Other commenters stated
that certain kinds of disability-related training, such as awareness
and anti-stigma training, should also be mandatory. The purpose of
these efforts is to address problems of underrepresentation. To the
extent that an agency is meeting its (d)(7)(i) goals, the Commission is
without reason to believe that such efforts are necessary.
1614.203(d)(8) Recordkeeping
This paragraph of the Final Rule requires that each agency keep,
and make available to the Commission upon request,\104\ records of: (i)
The number of job applications received from individuals with
disabilities, and the number of individuals with disabilities who were
hired by the agency; (ii) the number of job applications received from
individuals with targeted disabilities, and the number of individuals
with targeted disabilities who were hired by the agency; (iii) all
rescissions of conditional job offers, demotions, and terminations
taken against applicants or employees as a result of medical
examinations or inquiries; (iv) all agency employees hired under the
Schedule A hiring authority for persons with certain disabilities, and
each such employee's date of hire, entering grade level, probationary
status, and current grade level; (v) the number of employees appointed
under the Schedule A hiring authority for persons with certain
disabilities who have been converted to career or career-conditional
appointments in the competitive service each year, and the number of
such employees who were terminated prior to being converted to a career
or career-conditional appointment in the competitive service each year;
and (vi) details regarding all requests for reasonable accommodation
the agency receives. Aside from minor stylistic and terminological
differences, it is identical to paragraph (d)(8) of the proposed
rule.\105\
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\104\ The records will be subject to all applicable record
retention requirements, including the record retention requirements
overseen by NARA. See, e.g., Records Management, supra note 59.
\105\ The records required under this paragraph are subject to
the confidentiality requirements of the Privacy Act. See 5 U.S.C.
552a. Records relating to reasonable accommodation are also subject
to the confidentiality requirements imposed by the ADA, as
incorporated. See 42 U.S.C. 12112(d)(4)(A) (imposing the
requirements); 29 U.S.C. 791(f) (incorporating the requirements into
Section 501); 29 CFR 1630.14(c) (implementing the requirements); 29
CFR pt. 1630, app. 1630.14(c) (discussing the requirements); 29 CFR
1614.203(b) (incorporating the implementing regulations into the
regulations implementing Section 501).
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One federal agency stated that the paragraph should not require
agencies to keep records of all reasonable accommodation requests
because, in the agency's opinion, it is more efficient to handle some
requests ``informally.'' The commenter's position runs counter to
longstanding federal policy. Executive Order 13164 instructs agencies
to ensure that their systems of recordkeeping ``track the processing of
requests for reasonable accommodation,'' \106\ and guidance on the
Executive Order provides that the records must (among other things)
allow the agency to identify ``the number and types of reasonable
accommodations that have been requested in the application process and
whether those requests have been granted or denied; . . . the number
and types of reasonable accommodation for each job, by agency
component, that have been approved, and the number and types that have
been denied; . . . [and] the amount of time taken to process each
request for reasonable accommodation . . . .'' \107\ Such records are a
necessary component of an agency's efforts to ensure that the agency is
processing requests for reasonable accommodation in accordance with the
nondiscrimination requirements of Section 501.
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\106\ Executive Order No. 13164, supra note 14.
\107\ See 13164 Guidance, supra note 15.
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One commenter suggested that the paragraph should require agencies
to develop systems that make their employment data available to
vocational rehabilitation agencies ``in real time.'' The commenter
failed to clarify how such a system would work, but, to the extent that
it would grant non-agency access to agency personnel files, it is
likely to create significant problems of privacy and data security.
1614.203(e) Reporting
The paragraph requires each agency to submit to the Commission, on
an annual basis, a report that contains a copy of its Plan; the results
of its two most recent workforce analyses performed pursuant to
paragraph (d)(6) of the Rule showing the percentages of individuals
with disabilities and individuals with targeted disabilities in both of
the specified pay groups; the number of individuals appointed under the
Schedule A hiring authority for persons with certain disabilities
during the previous year; the total number of employees whose
employment at the agency began by appointment under the Schedule A
hiring authority for persons with certain disabilities; and an
explanation of any changes that were made to the Plan since the prior
submission. The paragraph also requires agencies to make all
information submitted to the Commission pursuant to this requirement
available to the public by, at a minimum, posting a copy of the
submission on its public Web site and providing a means by which
members of the public may request copies of the submission in
accessible formats. Aside from minor stylistic differences, it is
identical to paragraph (e) of the proposed rule.
[[Page 671]]
Several commenters stated that the proposed reporting requirements
overlapped with those of MD-715, and therefore that, in order to avoid
redundancies, MD-715 should be amended. As stated in the NPRM, the
Commission intends to modify the requirements of MD-715 after final
promulgation of this Rule to eliminate redundancies.
Some commenters stated that the paragraph should require agencies
to report (and, if not already required to do so, keep records of)
additional information, including, for example, the number of
individuals appointed under the Schedule A hiring authority for persons
with certain disabilities who were subjected to removal or offered
voluntary resignation; the representation rates for individuals with
disabilities and individuals with targeted disabilities broken down by
grade level; a list of the disability organizations with which the
agency maintains partnerships; the retention and performance rates for
employees with disabilities and employees with targeted disabilities;
the numbers of employees classified as having disabilities on the basis
of conditions that developed pre-hire, that developed post-hire, or
were service-related; and the number of individuals appointed under
each veterans' authority who identified themselves as having a targeted
disability. The Commission is not persuaded that it is necessary to
report information at this level of detail in order to determine
whether an agency has satisfied its Section 501 obligation to engage in
affirmative action for individuals with disabilities.
1614.203(f) Standards for Approval and Disapproval of Plans
Paragraph (f) of the proposed rule provided that the Commission
will (1) approve an agency Plan if it determines that the Plan, as
implemented, meets the requirements set forth in paragraph (d) of the
rule, and (2) disapprove a Plan if it determines that it, as
implemented, does not meet those requirements. The paragraph further
clarified that failure to achieve a goal set forth in paragraph
(d)(8)(i), by itself, is not grounds for disapproval unless the Plan
fails to require the agency to take specific steps that are reasonably
designed to achieve the goal in the future. Having received no
objections, the Commission adopts the paragraph in the Final Rule
unchanged.
1614.601(f) EEO Group Statistics
Section 1614.601 requires each agency to establish a system to
collect and maintain accurate demographic information about its
employees, and paragraph 1614.601(f) specifies how agencies are to
gather disability data. As explained above, paragraphs (d)(6)(ii) and
(d)(6)(iii) specify how agencies are to gather disability data for
purposes of the workforce analyses required under (d)(6)(i). In order
to avoid any conflict between sections 1614.203 and 1614.601, paragraph
1614.601(f) has been amended to provide that ``[d]ata on disabilities
shall be collected using a method permitted under Sec.
1614.203(d)(6)(ii) and Sec. 1614.203(d)(6)(iii).'' The revised
paragraph imposes no new obligations on federal agencies.
Executive Order 12866 \108\ and Executive Order 13563 \109\ (Regulatory
Planning and Review)
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\108\ Executive Order No. 12866, 3 CFR 638 (1993), http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866.pdf.
\109\ Executive Order No. 13563, 3 CFR 215 (2011), http://www.whitehouse.gov/sites/default/files/omb/inforeg/eo12866/eo13563_01182011.pdf.
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This Rule has been drafted and reviewed in accordance with
Executive Order 12866 and Executive Order 13563. This Rule has been
designated a ``significant regulatory action'' under section 3(f) of
Executive Order 12866. Accordingly, the proposed rule has been reviewed
by the Office of Management and Budget.
Executive Order 12866 directs agencies to submit a regulatory
impact analysis for those regulatory actions that are ``economically
significant'' within the meaning of section 3(f)(1).\110\ A regulatory
action is economically significant under section 3(f)(1) if it is
anticipated (1) to ``[h]ave an annual effect on the economy of $100
million or more,'' or (2) to ``adversely affect in a material way the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or tribal
governments or communities.'' \111\ Executive Order 13563 reaffirms the
principles established by Executive Order 12866, and further emphasizes
the need to reduce regulatory burden to the extent feasible and
permitted by law.\112\ It directs agencies to propose or adopt a
regulation only upon a reasoned determination that its benefits justify
its cost (recognizing that some benefits and costs are difficult to
quantify); to tailor its regulations to impose the least burden on
society, consistent with obtaining regulatory objectives; and to
select, from among alternative regulatory approaches, including the
alternative of not regulating, those approaches that maximize net
benefits (including potential economic, environmental, public health
and safety, and other advantages, distributive impacts, and equity).
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\110\ Executive Order 12866 refers to ``those matters identified
as, or determined by the Administrator of [the Office of Information
and Regulatory Affairs] to be, a significant regulatory action
within the scope of section 3(f)(1).'' Executive Order No. 12866,
supra note 108. The Office of Management and Budget states that
``Executive Order 12866 requires agencies to conduct a regulatory
analysis for economically significant regulatory actions as defined
by Section 3(f)(1).'' Office of Mgmt. & Budget, Circular A-4 (Sept.,
2003), http://www.whitehouse.gov/omb/circulars_a004_a-4.
\111\ Executive Order No. 12866, supra note 108.
\112\ Executive Order No. 13563, supra note 109.
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As explained above, the Commission has concluded that the existing
practice of explaining Section 501's affirmative action obligations
through management directives and sub-regulatory guidance,\113\ and not
through regulation,\114\ has failed to sufficiently advance the
employment of qualified individuals with disabilities. Detailed
regulations are necessary in order to ensure that the obligations have,
and are recognized to have, the force of law. Moreover, the Rule will
make it easier for agencies to learn about their affirmative action
obligations by presenting them all in one place, rather than in a range
of documents, none of which are comprehensive.
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\113\ See supra notes 10-23 and accompanying text.
\114\ Prior paragraph 1614.203(a) stated only that the federal
government shall be a ``model employer of individuals with
disabilities,'' and that federal agencies shall ``give full
consideration to the hiring, placement, and advancement of qualified
individuals with disabilities.''
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EEOC has conducted an economic analysis of this Final Rule in
accordance with EO 12866 and EO 13563. The analysis, revised in
response to public comments and in light of the revisions discussed
above, is presented below.
Except where noted, we assume that work required under the Rule
will be performed by GS-12 step 5 level employees in the Washington-
Baltimore-Northern Virginia, DC-MD-VA-WV-PA region.\115\ The
compensation rate for such employees,
[[Page 672]]
adjusted to include benefits, is $66.78 per hour \116\ or $143,968.85
per year.\117\
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\115\ In the NPRM, the Commission assumed that some of the
required tasks would be performed by employees at the GS-14 level.
On reflection, we believe that they are more likely to be performed
by employees at the GS-12 level. The Commission realizes that not
all of these tasks will be performed by GS-12 step 5 level employees
in the Washington-Baltimore-Northern Virginia, DC-MD-VA-WV-PA
region; the assumption is made purely for purposes of the economic
analysis.
\116\ See Office of Pers. Mgmt., Salary Table 2016-DCB: Hourly
Basic (B) Rates by Grade and Step, Hourly Overtime (O) Rates by
Grade and Step (Jan. 2016), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/DCB_h.pdf
(providing hourly monetary compensation rates). To adjust for the
cost of benefits, we divided the annual salary by 0.61. See
Congressional Budget Office, Comparing the Compensation of Federal
and Private-Sector Employees 9 (Jan. 2012), https://www.cbo.gov/sites/default/files/01-30-FedPay_0.pdf [hereinafter Comparing
Compensation] (reporting that the cost of providing benefits to
federal workers averages between $15.50 and $24.70 per hour).
\117\ See Office of Pers. Mgmt., Salary Table 2016-DCB: Annual
Rates by Grade and Step (Jan. 2016), https://www.opm.gov/policy-data-oversight/pay-leave/salaries-wages/salary-tables/pdf/2016/DCB.pdf [hereinafter Annual Rates] (providing annual monetary
compensation rates). To adjust for the cost of benefits, we divided
the annual salary by 0.61. See Comparing Compensation, supra note
116, at 9 (reporting that benefits account for 39% of the cost of
total compensation for federal workers).
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Provisions Imposing No Additional Burden
The NPRM stated that many of the requirements in the proposed rule
would have no economic effect, because they did not impose new
requirements or burdens on federal agencies--
Proposed paragraph (a), which set forth definitions of key
terms, imposed no substantive requirements.
Proposed paragraph (b), which provided that Section 501
prohibits discrimination on the basis of disability, and that the
standards for determining whether Section 501 has been violated in a
complaint alleging employment discrimination are the same standards
applied under the ADA, merely revised paragraph (b) in the current
regulations for clarity.
Proposed paragraph (c), which required agencies to be
model employers of individuals with disabilities, was identical to
paragraph (a) of the current regulations.
The requirement to adopt an affirmative action plan, in
proposed paragraph (d), is imposed by Section 501.\118\
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\118\ 29 U.S.C. 791(b).
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Proposed paragraph (d)(1)(iii), which required agencies to
take steps to ensure that individuals with disabilities have sufficient
advancement opportunities, provided guidance on how to fulfill existing
requirements rather than imposing new ones.\119\
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\119\ See, e.g., 29 CFR 1614.102(a)(10), (a)(11), (a)(13),
(b)(1); Promoting Employment, supra note 21; 13164 Guidance, supra
note 15; MD-715, supra note 16. Indeed, the Commission anticipated
that the additional guidance contained in the proposed rule, in the
form of helpful examples and suggestions, would reduce agency burden
by making it easier to satisfy the existing requirements. However,
because the Commission did not have any data upon which to base an
estimate of time saved, it did not quantify the benefit.
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The requirements of proposed paragraphs (d)(3)(i)
(requiring written reasonable accommodation procedures) and (d)(3)(iii)
(requiring agencies to provide individuals who have been denied a
reasonable accommodation with written notice of the reasons for the
denial) were taken from MD-715, Executive Order 13164, and existing
agency guidance.\120\
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\120\ See MD-715, supra note 16; Executive Order No. 13164,
supra note 14; 13164 Guidance, supra note 15.
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The recordkeeping requirements of proposed paragraph
(d)(8), with the exception of the requirements imposed by (d)(8)(iii)
and (d)(8)(iv) (discussed below), were taken from MD-715.\121\
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\121\ See MD-715, supra note 16.
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The requirement to submit a Plan to the Commission for
approval on an annual basis, found in proposed paragraph (e)(1), is
imposed by Section 501.\122\
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\122\ 29 U.S.C. 791(b).
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The Commission received no objections to this aspect of the
economic analysis, and none of the revisions made to these paragraphs
impose additional requirements or burdens on federal agencies.
One-Time Costs
The NPRM stated that the following aspects of the proposed rule,
all of which required agencies to make certain information more readily
available, imposed one-time compliance costs on federal agencies--
Proposed paragraph (d)(2) required agencies to clarify in
their harassment policies that disability-based harassment is
prohibited.
Proposed paragraph (d)(3)(ii) required agencies to inform
all employees who are authorized to grant or deny requests for
reasonable accommodation that all resources available to the agency as
a whole are considered when determining whether a denial of reasonable
accommodation based on cost is lawful.
Proposed paragraph (d)(4) required agencies to make
certain contact information available to employees.
Proposed paragraph (e)(2) required agencies to make their
Plans available to the public.
The Commission estimated that agencies would need to spend
approximately 5 hours performing these tasks, updating policies, and
checking for compliance. The Commission received no objections to this
estimate in the public comments. Revisions to these paragraphs,
however, led us to adjust the estimate--
Proposed paragraph (d)(3)(ii) has been revised to require
agencies to inform all employees who are authorized to make hiring
decisions, in addition to employees authorized to grant or deny
requests for reasonable accommodation, that all resources available to
the agency as a whole, excluding those designated by statute for a
specific purpose that does not include reasonable accommodation, are
considered when determining whether a denial of reasonable
accommodation based on cost is lawful.
Proposed paragraph (d)(3)(ii) has also been revised to
require agencies to ensure that anyone authorized to grant or deny
requests for reasonable accommodation or to make hiring decisions is
aware of, and knows how to arrange for the use of, agency resources
available to provide the accommodation.
Proposed paragraph (d)(4) has been revised to require
agencies to make information on substantive Section 508 and ABA rights
available to employees, in addition to contact information.
To account for the additional requirements, the Commission has
doubled the estimate of the time needed to perform the necessary tasks,
from 5 to 10 hours. Multiplying by the number of agencies covered by
the Rule (218) \123\ and by the hourly compensation rate of $66.78
yields a total estimated cost of $145,580.40.
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\123\ The number of agencies covered by the requirements of MD-
715 varies from year to year. The number of agencies covered in
Fiscal Year 2014 was 218.
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Paragraph (d)(1)(ii)
The NPRM stated that proposed paragraph (d)(1)(ii), requiring
agencies to have sufficient staff to answer disability-related
questions from members of the public, process requests for reasonable
accommodations made by job applicants, accept and process applications
for appointment under hiring authorities that take disability into
account, and oversee any other disability-related hiring programs,
would impose recurring costs on federal agencies. The Commission
provided both a high and a low estimate. To calculate the high
estimate, we assumed that each covered agency would need to hire at
least one new employee to assist the existing agency staff in
performing the required tasks. To calculate the low estimate, we
assumed that approximately 10% of agencies, or 22 agencies, would need
to hire a new employee. Using the updated annual
[[Page 673]]
compensation rate of $143,968.85, we multiply by the total number of
covered agencies (218) to arrive at a high estimate of $31,385,209.30
per year, and by 22 to arrive at a low estimate of $3,167,314.70 per
year.
Paragraph (d)(5)
The NPRM stated that proposed paragraph (d)(5), requiring agencies
to provide PAS to employees who need them because of a disability,
would impose costs because some current federal employees require
PAS.\124\ The Commission was aware of only one study measuring the
number of employed individuals who require personal services at work
because of a disability (2003 study), finding that 1.1% of individuals
with disabilities, as that term was defined, required ``a personal
assistant to help with job-related activities.'' \125\ We thus
estimated that 1.1% of current federal employees with targeted
disabilities would require PAS.\126\
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\124\ Paragraph (d)(5) is also expected to impose costs arising
from the need to provide PAS to individuals who are hired because of
the Rule. These costs are discussed in the section on paragraph
(d)(7) below.
\125\ See Craig Zwerling, et al., Workplace Accommodations for
People with Disabilities: National Health Interview Survey
Disability Supplement, 1994-1995, 45 J. Occupational & Envtl. Med.
517, 519 (2003). For purposes of the study, an individual had a
disability if he or she had ``difficulty with [activities of daily
living] (bathing, dressing, eating, getting in or out of bed or
chair, or using the toilet); difficulty with [instrumental
activities of daily living] (preparing own meals, shopping for
personal items, using the telephone, doing heavy work around the
house, or doing light work around the house); functional limitations
(lifting 10 pounds, walking up 10 steps, walking a quarter mile,
standing for 20 minutes, bending down from a standing position,
reaching over the head, using the fingers to grasp or handle
something, or holding a pen or pencil); difficulty seeing (even with
their glasses); difficulty hearing (even with a hearing aid);
reported mental health or cognitive diagnoses (Down's Syndrome,
mental retardation, schizophrenia, delusional disorders, bipolar
disorder, major depression, severe personality disorder, alcohol
abuse, drug abuse, other mental or emotional conditions); or
reported use of a cane, crutches, walker, wheelchair. Or scooter to
get around.'' Id. at 518.
\126\ The group of individuals included in the study, see supra
note 125, more closely matches the definition of ``targeted
disability'' than the definition of ``disability'' under paragraph
(a). As noted throughout, the Section 501 definition of
``disability'' is very broad.
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One commenter stated that this estimate was far too low, and that
the proposed paragraph would require federal agencies to provide PAS to
``multitudes'' of federal employees. The Commission disagrees. It is
simply not true that ``multitudes'' of current federal employees are
unable to eat, use the restroom, or perform similar tasks without
assistance. The Commission reminds readers that (d)(5) does not require
agencies to assist employees by, for example, typing or reading work
materials aloud for someone who requires these services because of a
disability, because those types of job-related services are already
required as reasonable accommodations absent undue hardship. (Of
course, an agency would not be required to provide these specific
accommodations if an alternative would be both less expensive and
equally effective.) The paragraph also does not require agencies to
hire an assistant to perform essential functions of the individual's
job, or to perform tasks that the individual can perform on his or her
own.
As explained in the NPRM, the Commission suspects that the actual
number of current federal employees who will receive PAS pursuant to
(d)(5) is close to zero. A federal employee who requires PAS to remain
in the workplace, but does not receive PAS from his or her agency,
generally would need to pay for such services out-of-pocket. An
individual who has no income, by contrast, typically relies on public
benefits to pay for PAS. One study has found that an individual would
need to earn approximately $40,000.00 per year simply to break
even.\127\
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\127\ See Douglas Klayman, et al., Soc. Dynamics, LLC, Funding
Options for Personal Assistance Services 17 (2009), www.dol.gov/odep/research/FundingOptionsPersonalAssistanceServices(PAS).pdf.
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Nevertheless, because the Commission lacks any additional data, we
continue to assume for purposes of the analysis that 1.1% of current
federal employees with targeted disabilities require PAS. There are
approximately 19,536 individuals with targeted disabilities in the
federal workforce.\128\ Multiplying that number by 0.011 yields an
estimated total of 215 current federal employees who require PAS. The
Commission is aware of 16 current employees who are already given PAS
by their agencies. Because provision of PAS to these individuals would
not represent new costs, we exclude these individuals from the
analysis, leaving an estimated 199 current employees who will receive
PAS as a result of (d)(5).
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\128\ See 2014 Report, supra note 95, at 25.
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Even though the proposed paragraph allowed agencies to assign PAS
providers to multiple individuals, and to perform additional duties,
the Commission assumed in the NPRM that agencies would provide each
individual with the equivalent of a full-time PAS provider.\129\ We
provided both a high and a low estimate of associated costs. To
calculate the low estimate, we assumed that agencies would contract
with vendors to provide each individual with PAS for the equivalent of
full-time hours at the minimum hourly rate for federal contractors
($10.10).\130\ To calculate the high estimate, the Commission assumed
that agencies would hire a PAS provider for each individual at the GS-5
level.
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\129\ Because individuals who require personal assistance
services generally do not require them continuously throughout the
workday, the cost of providing such services to a single individual
will represent a fraction of this figure. See, e.g., Tatiana I.
Solovieva et al., Cost of Workplace Accommodations for Individuals
with Disabilities: With or Without Personal Assistance Services, 2
Disability & Health J. 196, 201 (2009) (reporting that the median
annual cost of accommodations for individuals who need personal
assistance services is $8,000.00).
\130\ See Executive Order No. 13658, 79 FR 9851 (Feb. 12, 2014),
http://www.gpo.gov/fdsys/pkg/FR-2014-02-20/pdf/2014-03805.pdf.
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One commenter stated that the estimates were far too low. The
commenter further stated that, to generate the low-end estimate, the
Commission should assume that agencies will hire PAS providers at the
GS-6 level, which, according to the commenter, is a level appropriate
for practical nurses.
The commenter's assertions are out of step with all available
evidence. PAS providers earn, on average, an amount per hour that is
approximately equal to the federal minimum wage,\131\ and an amount per
year that is significantly lower than the annual salary of a GS-5 level
employee.\132\ We therefore retain the prior assumptions. To generate
the low estimate, we multiply $10.10 by the equivalent of full-time
hours (2,080 hours per year), yielding an estimated annual per-person
cost of $20,800.00. Multiplying by the number of covered agencies
yields a total estimated cost for providing PAS to current federal
employees of $4,180,592.00 per year. To generate the high estimate, we
multiply the annual salary of a GS-5, step 5 level employee in the
Washington-Baltimore-
[[Page 674]]
Northern Virginia, DC-MD-VA-WV-PA region ($65,519.67, adjusted to
include benefits) \133\ by the number of covered agencies, for a total
estimated cost of $13,038,414.33 per year.
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\131\ See, e.g., Personal Assistant Career, MyMajors, http://www.mymajors.com/career/personal-assistant/salary/ (last visited
Dec. 21, 2016) (reporting that PAS providers have an average hourly
wage of $10.20); Douglas Klayman, et al., supra note 127, at 16
(finding that the average hourly wage was $9.11); Denetta L. Dowler
et al., Personal Assistance Services in the Workplace: A Literature
Review, 4 Disability & Health J. 201, 206 (2011) (finding that the
average hourly wages of between $8.18 and $12.00); Tatiana I.
Solovieva et al., Personal Assistance Services (PAS) for Individuals
with Disabilities: Self-Care at the Workplace, 36 Work 339, 341
(2010) (reporting an average hourly wage of $8.34).
\132\ PAS providers have an average annual income of $21,210.00.
See, e.g., Personal Assistant Career, supra note 131. A GS-5 step 5
level employee in the Washington-Baltimore-Northern Virginia, DC-MD-
VA-WV-PA region earns $39,967.00--a full 88% more. See Annual Rates,
supra note 117.
\133\ See supra note 117.
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In calculating both the high- and low-end costs of providing PAS,
the Commission did not include the cost of having PAS providers
accompany employees on work-related travel. First, we believe that
whether an agency is required to provide PAS or not, it would have the
obligation to pay the cost of a PAS provider to travel with an employee
as a reasonable accommodation.\134\ Additionally, the Commission lacks
any reliable data on which to base such an estimate, since there is no
way of knowing how many employees who require PAS would be hired into
jobs that require travel and how often travel would be required.
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\134\ See 29 CFR pt. 1630, app. 1630.2(o) (stating that it may
be a reasonable accommodation for an employer to provide ``a travel
attendant to act as a sighted guide to assist a blind employee on
occasional business trips''). Additionally, federal regulations
specifically provide for the reimbursement of travel expenses for
family members or other attendants needed by an employee with a
disability to make work-related travel possible. See 41 CFR 301-12,
-13, -70.
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Paragraph (d)(6)
In the NPRM, the Commission asserted that proposed paragraph
(d)(6), requiring agencies to gather workforce data, imposed no new
costs on agencies because they are already required to gather such data
under MD-715.\135\ However, paragraph (d)(6)(ii)(A) has been amended to
allow agencies to develop novel ways of gathering voluntary self-report
data if the SF-256 does not meet their needs. We estimate that 50
agencies will gather voluntary self-identification data using a form
other than the SF-256, and that each agency will spend 10 hours per
year administering the survey, for a total of 500 additional burden
hours. Multiplying by the hourly compensation rate of $66.78, we
conclude that paragraph (d)(6) will have a total annual cost of
approximately $33,390.00.
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\135\ MD-715 requires agencies to conduct annual internal
reviews of their policies, practices, and procedures to determine
whether they provide sufficient employment opportunities to
qualified applicants and employees with disabilities, especially
those with targeted disabilities. As part of this analysis, agencies
must determine the numerical representation and distribution of
applicants and employees with disabilities and targeted
disabilities. See MD-715, supra note 16, at B.III. MD-715 also
requires agencies to determine whether they are meeting obligations
imposed by Title VII, 42 U.S.C. 2000e--2000e-17, on an annual basis.
See id. at A. Those requirements are not relevant to this
rulemaking.
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Paragraph (d)(7)
The NPRM noted that 3 aspects of proposed paragraph (d)(7),
requiring agencies to adopt employment goals for individuals with
disabilities and individuals with targeted disabilities, were likely to
impose recurring costs. First, to determine whether the goals have been
met, agencies would need to determine how many individuals with
disabilities are employed at each GS and SES level. The NPRM stated
that the associated costs would be minimal because agencies could
simply request the information from OPM.\136\ The Commission estimated
that each agency would spend 2 hours performing the required tasks, for
an estimated total of 436 burden hours.
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\136\ See, e.g., 2014 Report, supra note 95, at 25.
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Again, revisions to the Rule require us to adjust the estimate. In
addition to the information described above, agencies that have
employees who are on neither the GS nor the SES pay scale will need to
determine how many such employees--
are individuals with disabilities and have salaries equal
to or greater than an employee at the GS-11 step 1 level in the
Washington, DC locality;
are individuals with targeted disabilities and have
salaries equal to or greater than employees at the GS-11 step 1 level
in the Washington, DC locality;
are individuals with disabilities and have salaries less
than employees at the GS-11 step 1 level in the Washington, DC
locality; and
are individuals with targeted disabilities and have
salaries less than employees at the GS-11 step 1 level in the
Washington, DC locality.
There are approximately 114 agencies that have employees on non-GS,
non-SES pay scales. The Commission estimates that each such agency will
spend 2 hours collecting the required information, for a total of 228
additional burden hours. Adding the previous estimate yields an overall
estimate of 664 burden hours arising from the obligation to determine
whether the employment goals have been met. Multiplying by the hourly
compensation rate $66.78 yields a total estimated annual cost of
$44,341.92.
Second, the NPRM stated that because paragraph (d)(7)(i) encourages
federal agencies to hire individuals with disabilities, it may impose
ongoing costs by increasing the number of federal employees who need a
reasonable accommodation. We first considered the number of additional
employees who would require a reasonable accommodation. Based on OPM
data, the Commission estimated that the federal government as a whole
would need to hire approximately 384 individuals with targeted
disabilities at the GS-10 level or below, and approximately 10,381
individuals with targeted disabilities at the GS-11 level or above
(including the SES), to meet the goals.
Because the goals have been revised to cover employees who are on
neither the GS nor the SES pay scale, the estimate has been revised--
\137\
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\137\ See id. Because OPM reports only limited data regarding
federal employees who are on neither the GS nor the SES pay scale,
the Commission assumed for purposes of this analysis that employees,
employees with disabilities, and employees with targeted
disabilities are distributed between higher and lower levels of
employment in roughly the same proportions as employees on the GS
and SES scales. We also note that, based on an initial review of
2015 data, the number of new hires required to reach the goals would
likely be lower than estimated above, resulting in lower costs
overall. See Office of Pers. Mgmt., Report on the Employment of
Individuals with Disabilities in the Federal Executive Branch:
Fiscal Year 2015, 27 (2015), https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reports/disability-report-fy2015.pdf.
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Agencies will need to hire approximately 1,594 additional
individuals with targeted disabilities to meet the 2% goal for
individuals who are either at the GS-10 level or below or who are not
paid under the General Schedule and who have salaries that are less
than that of an employee at the GS-11 step 1 level in the Washington,
DC locality.\138\
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\138\ The regulation does not require agencies to create
positions or vacancies for persons with targeted disabilities;
agencies may place individuals with targeted disabilities into
existing vacancies.
---------------------------------------------------------------------------
Agencies will need to hire approximately 15,385 additional
individuals with targeted disabilities to meet the 2% goal for
individuals who are either at the GS-11 level or above or who are not
paid under the General Schedule and who have salaries equal to or
greater than that of an employee at the GS-11 step 1 level in the
Washington, DC locality.
Agencies will need to hire approximately 4,262 additional
individuals with disabilities to meet the 12% goal for individuals who
are either at the GS-11 level or above or who are not paid under the
General Schedule and who have salaries equal to or greater than that of
an employee at the GS-11 step 1 level in the Washington, DC locality.
As in the NPRM, we assume that each new hire will require a reasonable
accommodation,\139\ and estimate the
[[Page 675]]
cost of each accommodation to be $500.00 per year.\140\ Multiplying by
the total number of estimated new hires (21,241) yields an estimated
cost of $10,620,500.00 per year arising from the need to provide
reasonable accommodations to new hires.
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\139\ As noted in the NPRM, this is almost certainly an
overestimate, because many individuals with disabilities do not
require an accommodation. See Job Accommodation Network, Workplace
Accommodations: Low Cost, High Impact 3 (updated Sept. 1, 2014),
http://askjan.org/media/downloads/LowCostHighImpact.pdf.
\140\ See id. (finding that, if an accommodation has a cost, it
will typically be approximately $500.00). This is also almost
certainly an overestimate, because many individuals with
disabilities do not require an accommodation; if an accommodation is
required, it is likely to have no cost; and if it does have a cost,
the cost does not necessarily recur. See id.
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Third, the NPRM stated that proposed paragraph (d)(7)(i) would
impose ongoing costs by encouraging agencies to hire employees who are
entitled to PAS under paragraph (d)(5). We assumed that the percentage
of individuals who require PAS among new hires with targeted
disabilities would reflect the percentage of individuals requiring PAS
among individuals who have targeted disabilities, are unemployed, and
are looking for work. Based on the 2003 study, and on a 2006 study that
investigated the prevalence of reported ``self-care difficulties''
among employed and unemployed individuals with disabilities,\141\ we
estimated that between 1.1% and 2% of individuals who have targeted
disabilities, are unemployed, and looking for work require PAS.
However, because neither study assessed the need for PAS among
unemployed individuals,\142\ we noted at the time that the estimates
may be both under- and over-inclusive.
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\141\ Susan Stoddard et al., Personal Assistance Services as a
Workplace Accommodation, 27 Work 363, 364 (2006).
\142\ As explained, the 2003 study assesses the need for PAS
among employed individuals with disabilities, and the 2006 study
assesses the prevalence of reported self-care difficulties among
unemployed individuals with disabilities.
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The Commission has refined its approach. We again assume that the
percentage of individuals requiring PAS among new hires with targeted
disabilities will reflect the percentage of those requiring PAS among
individuals who have targeted disabilities, are unemployed, and looking
for work. To determine the latter percentage, we first attempt to
determine the number of individuals who have targeted disabilities, are
unemployed, and are looking for work. We then attempt to determine the
number of individuals who have targeted disabilities, are unemployed,
are looking for work, and who require PAS. Finally, we compare the two
numbers to arrive at a percentage.
To determine the number of individuals who have targeted
disabilities, are unemployed, and are looking for work, we rely on
census data. As discussed above, the census definition of
``disability'' matches neither the definition of ``disability'' nor the
definition of ``targeted disability'' under paragraph (a). However, the
census data are the best available to the Commission at this time.
Further, because the census definition requires ``serious difficulty''
with an activity such as seeing or walking, it is likely that most
people who meet the census definition have a targeted disability.\143\
We therefore rely on census data to conclude for purposes of the
economic analysis that there are approximately 1,282,377 individuals
who have targeted disabilities, are unemployed, and are looking for
work.\144\
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\143\ See supra note 99.
\144\ See Employment Status by Disability Status and Type
(2014), U.S. Census Bureau, http://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ACS_14_1YR_B18120&prodType=table (last visited
Dec. 21, 2016) (reporting that 1,282,377 individuals who meet the
census definition of ``disability'' are noninstitutionalized,
between the ages of 18 and 64, unemployed, and looking for work).
Use of the census data will lead to an overestimate of costs. As
noted in the NPRM, some individuals with targeted disabilities, such
as individuals with epilepsy or certain psychiatric disabilities,
likely do not fall into the census definition. Therefore, the census
data are likely to underestimate the total number of individuals
with targeted disabilities who are unemployed and looking for work,
thereby making the proportion of such individuals needing PAS seem
artificially large.
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To determine the number of individuals who have targeted
disabilities, are unemployed, are looking for work, and who require
PAS, we first note that there are approximately 1,257,000 individuals
employed as personal assistance service providers throughout the
country.\145\ Assuming that each provider is assigned to a single
individual, there are approximately 1,257,000 individuals who require
PAS nationally, presumably because of a targeted disability.\146\ Not
all of these individuals are unemployed and looking for work, however--
some are already employed, some are retired, some are below working
age, and some do not participate in the workforce for other reasons.
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\145\ Personal Assistant Career, supra note 131.
\146\ We recognize that some individuals with disabilities may
receive PAS from family members, rather than from persons who work
as personal assistance service providers. We have no data, however,
about how many such individuals receive PAS exclusively from family
members, and consequently, whether and to what extent 1,257,000
individuals who require PAS underestimates the actual number. We
believe that any difference would be small, however, since
individuals who receive PAS from family members likely also receive
PAS from individuals who are PAS providers.
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The Commission is not aware of any data showing how many
individuals who require PAS because of a targeted disability are
unemployed and looking for work. To arrive at an approximation, we
assume that the workforce participation and unemployment rates for such
individuals reflect those of individuals who have disabilities that
result in self-care difficulty more generally.\147\ Research shows that
roughly 8% of these individuals participate in the workforce (are
either employed or unemployed and looking for work),\148\ and that
their unemployment rate is approximately 18.14%.\149\ Thus, roughly
18.14% of 8%, or 1.4512%, of individuals with disabilities resulting in
self-care difficulty are unemployed and looking for work. Applying this
percentage to the estimated number of individuals who require PAS
because of a targeted disability (1,257,000), we find that there are
approximately 18,242 individuals who have a targeted disability, are
unemployed, are looking for work, and who require PAS nationally.
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\147\ We suspect that the workforce participation rate for
individuals who require PAS is significantly lower than the
workforce participation rate for individuals who have disabilities
that result in self-care difficulty. But again, because the
Commission lacks more specific data, and also because lower
workforce participation rates may be offset by higher unemployment
rates for individuals who require PAS, we believe that the data on
individuals who have disabilities that result in self-care
difficulty are adequate for purposes of this analysis.
\148\ Am. Insts. for Research, One Size Does Not Fit All: A New
Look at the Labor Force Participation of People with Disabilities 4
(2015), http://www.air.org/sites/default/files/downloads/report/Labor-Force-Participation-People-with-Disabilities-Yin-Sept-2015.pdf.
\149\ In 2014, the number of employed individuals who had
disabilities that resulted in self-care difficulty was 548,700, and
the number who were unemployed and looking for work was 121,600. The
total number of such individuals who participated in the workforce
in 2014 was therefore 670,300. The 121,600 who were unemployed and
looking for work represent 18.14% of this total. All of these
figures were obtained using the data retrieval tool at Cornell
Univ., American Community Survey (ACS) Employment Statistics,
Disability Statistics, https://www.disabilitystatistics.org/reports/acs.cfm?statistic=3 (last visited July 7, 2016).
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Comparing the estimated number of individuals who have targeted
disabilities, are unemployed, are looking for work, and who require PAS
(18,242) to the estimated total number of individuals who have targeted
disabilities, are unemployed, and are looking for work (1,282,377), we
find that the former group represents 1.42% of the latter. Assuming, as
discussed above, that this relationship will be
[[Page 676]]
reflected in the estimated 16,979 new hires who have targeted
disabilities, we conclude that 241 new hires will require PAS.
To generate an estimate of the associated costs, we rely on the
estimated per-person costs for providing PAS calculated in the section
on paragraph (d)(5) above. Multiplying 241 by the low estimate of the
associated costs ($21,008.00) yields a total estimated cost of
$5,062,928.00 per year, and multiplying by the high estimate of the
associated costs ($65,519.67) yields a total estimated cost of
$15,790,240.47 per year.
In summary, the estimated annual costs arising from paragraph
(d)(7) will be $44,341.92 (the estimated cost of determining whether
goals have been met) plus $10,620,500.00 (the estimated cost of
providing reasonable accommodations to individuals hired pursuant to
the goals) plus between $5,062,928.00 and $15,790,240.47 (the estimated
cost of providing PAS to individuals hired pursuant to the goals), for
a total estimated annual cost of between $15,727,769.92 and
$26,455,082.39.
Paragraphs (d)(8)(iii) and (d)(8)(iv)
The requirements of proposed paragraphs (d)(8)(iii) and
(d)(8)(iv)--to keep records of all employees hired under the Schedule A
hiring authority for persons with certain disabilities, to calculate
the number of such employees who have been converted to career or
career-conditional appointment, and to calculate the number of such
employees who have been terminated prior to conversion--were adopted
unchanged in the Final Rule. The NPRM estimated that it would take each
agency 2 hours to gather the required data, to perform the required
calculations, and to create and maintain the associated records.
Multiplying by the number of covered agencies yielded an overall
estimate of 436 burden hours per year.
One commenter stated that the estimate is too low for small
agencies that do not have ``automated [human resources (HR)] systems.''
The commenter did not state how many such agencies there are. For
purposes of this analysis, the Commission estimates for purposes of
this analysis that 20 agencies lack an automated HR system.
The commenter also did not provide an estimate of the amount of
time that such agencies would need to perform the required tasks,
except to say that the ``guidepost . . . is the amount of time it takes
to manually prepare the MD-715 report.'' We disagree that it would take
agencies the same amount of time to meet the requirements of
(d)(8)(iii) and (d)(8)(iv) as it would take them to prepare an entire
MD-715 report. The commenter is reminded that, to the extent paragraph
(d)(8) requires agencies to maintain the same records that are required
under MD-715, it imposes no new burden. The (d)(8) requirements exceed
those of MD-715 only insofar as they require records relating to the
Schedule A hiring authority for persons with certain disabilities. We
also note that the associated burden is likely to be proportional to
the size of the agency--if an agency is small enough that it lacks an
automated HR system, it is not likely to have appointed an
overwhelmingly large number of individuals under the Schedule A hiring
authority for persons with certain disabilities.
Nevertheless, the Commission estimates for purposes of this
analysis that each of the estimated 20 agencies lacking automated HR
systems will need to spend an additional 10 hours performing the
required tasks, for a total of 200 additional burden hours. Adding this
to the previous estimate yields a total estimate of 636 burden hours.
Multiplying by the hourly compensation rate of $66.78 yields a total
estimated cost for paragraphs (d)(8)(iii) and (d)(8)(iv) of $42,472.08
per year.
Economic Benefits
As stated in the NPRM, the Rule is also expected to have positive
economic effects by bringing a greater number of individuals with
disabilities into the workforce.\150\ Because individuals who require
PAS throughout the day and who are looking for work most likely rely on
government benefits to meet the significant cost of hiring a personal
assistant, the NPRM assumed that each individual who receives PAS from
an agency would otherwise have relied on Social Security and
Supplemental Security Income benefits to pay for those services.
Research indicated that, for every individual with a disability who
transitions from receipt of benefits to gainful employment, the federal
government saves approximately $19,380.00 in paid benefits, and gains
approximately $8,079.00 in tax revenue, on an annual basis,\151\ for a
total annual benefit of $27,459.00 per individual. The Commission
received no objections to this analysis. Multiplying by the revised
estimate of the number of new hires who are expected to require PAS
(241) yields a total estimated economic benefit of $6,617,619.00 per
year.
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\150\ See, e.g., Jean P. Hall, et al., Employment as a Health
Determinant for Working-Age, Dually-Eligible People with
Disabilities, 6 Disability & Health J. 100 (2013) (finding that
employment of individuals with disabilities is associated with lower
per-person, per-month Medicaid expenditures).
\151\ See Douglas Klayman, et al., supra note 127, at 17.
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Non-Economic Effects
The NPRM also noted that, in addition to economic effects, the
proposed rule would have a variety of qualitative and dignitary
benefits, all of which further values identified in Executive Order
13563 such as equity, human dignity, and fairness. Most significantly,
the NPRM stated that the rule would increase the number of hiring and
advancement opportunities available to individuals with disabilities by
making them better aware of federal job openings. Research demonstrates
that employment is an important determinant of both perceived quality
of life and health status among individuals with disabilities.\152\ In
addition, the NPRM stated that the proposed rule would have qualitative
and dignitary benefits, including--
---------------------------------------------------------------------------
\152\ See, e.g., Jean P. Hall, et al., supra note 150, at 100
(finding that, among individuals who are eligible for both Medicaid
and Medicare, paid employment is associated with significantly
better quality of life, self-reported health status, and health
behaviors).
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promotion of human dignity and self-respect, and
diminished feelings of exclusion and humiliation;
reduced prevalence of disability-based stereotypes and
associated stigma;
increased diversity, understanding, and fairness in the
workplace; and
improved interactions with coworkers and workplace morale.
All of these considerations apply equally well to the Final Rule.
The Rule is also expected to prevent disability-based employment
discrimination by making job applicants, employees, and agency
management better aware of the protections against discrimination
provided by Section 501.
Summary
In summary, the Commission estimates that the Rule as a whole will
have a one-time initial cost to the federal government of approximately
$145,580.40, an annual cost to the federal government of between
$23,151,538.70 and $70,954,568.10, and an annual economic benefit to
the federal government of $6,617,619.00. The Rule is also expected to
have a variety of non-monetizable qualitative and dignitary benefits
for individuals with disabilities and individuals with targeted
disabilities.
Regulatory Flexibility Act
The Commission certifies under 5 U.S.C. 605(b) that this Rule will
not have a significant economic impact on
[[Page 677]]
a substantial number of small entities, because it applies exclusively
to employees and agencies of the federal government. For this reason, a
regulatory flexibility analysis is not required.
Unfunded Mandates Reform Act of 1995
This Final Rule will not result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
$100 million or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Congressional Review Act
This action pertains to agency management, personnel and
organization and does not substantially affect the rights or
obligations of non-agency parties and, accordingly, is not a ``rule''
as that term is used by the Congressional Review Act (Subtitle E of the
Small Business Regulatory Enforcement Fairness Act of 1996. Therefore,
the reporting requirement of 5 U.S.C. 801 does not apply.
List of Subjects in 29 CFR Part 1614
Administrative practice and procedure, Age discrimination, Equal
employment opportunity, Government employees, Individuals with
disabilities, Race discrimination, Religious discrimination, Sex
discrimination.
For the reasons set forth in the preamble, the Equal Employment
Opportunity Commission amends 29 CFR part 1614 as follows:
PART 1614--FEDERAL SECTOR EQUAL EMPLOYMENT OPPORTUNITY
0
1. The authority citation for part 1614 continues to read as follows:
Authority: 29 U.S.C. 206(d), 633a, 791 and 794a; 42 U.S.C.
2000e-16 and 2000FF-6(e); E.O. 10577, 3 CFR, 1954-1958 Comp., p.
218; E.O. 11222, 3 CFR, 1964-1965 Comp., p. 306; E.O. 11478, 3 CFR,
1969 Comp., p. 133; E.O. 12106, 3 CFR, 1978 Comp., p. 263; Reorg.
Plan No. 1 of 1978, 3 CFR, 1978 Comp., p. 321.
0
2. Revise Sec. 1614.203 to read as follows:
Sec. 1614.203 Rehabilitation Act.
(a) Definitions. The following definitions apply for purposes of
this section:
(1) The term ADA means title I of the Americans with Disabilities
Act of 1990, as amended (42 U.S.C. 12101 through 12117), title V of the
Americans with Disabilities Act, as amended (42 U.S.C. 12201 through
12213), as it applies to employment, and the regulations of the Equal
Employment Opportunity Commission implementing titles I and V of the
ADA at part 1630 of this chapter.
(2) The term disability means disability as defined under Sec.
1630.2(g) through (l) of this chapter.
(3) The term hiring authority that takes disability into account
means a hiring authority that permits an agency to consider disability
status during the hiring process, including the hiring authority for
individuals with intellectual disabilities, severe physical
disabilities, or psychiatric disabilities, as set forth at 5 CFR
213.3102(u); the Veterans' Recruitment Appointment authority, as set
forth at 5 CFR part 307; and the 30% or More Disabled Veteran
authority, as set forth at 5 CFR 316.302(b)(4), 316.402(b)(4).
(4) The term personal assistance service provider means an employee
or independent contractor whose primary job functions include provision
of personal assistance services.
(5) The term personal assistance services means assistance with
performing activities of daily living that an individual would
typically perform if he or she did not have a disability, and that is
not otherwise required as a reasonable accommodation, including, for
example, assistance with removing and putting on clothing, eating, and
using the restroom.
(6) The term Plan means an affirmative action plan for the hiring,
placement, and advancement of individuals with disabilities, as
required under 29 U.S.C. 791(b).
(7) The term Schedule A hiring authority for persons with certain
disabilities means the hiring authority for individuals with
intellectual disabilities, severe physical disabilities, or psychiatric
disabilities, as set forth at 5 CFR 213.3102(u).
(8) The term Section 501 means section 501 of the Rehabilitation
Act of 1973, as amended (29 U.S.C. 791).
(9) The term targeted disability means a disability that is
designated as a ``targeted disability or health condition'' on the
Office of Personnel Management's Standard Form 256 or that falls under
one of the first 12 categories of disability listed in Part A of
question 5 of the Equal Employment Opportunity Commission's Demographic
Information on Applicants form.
(10) The term undue hardship has the meaning set forth in part 1630
of this chapter.
(b) Nondiscrimination. Federal agencies shall not discriminate on
the basis of disability in regard to the hiring, advancement or
discharge of employees, employee compensation, job training, or other
terms, conditions, and privileges of employment. The standards used to
determine whether Section 501 has been violated in a complaint alleging
employment discrimination under this part shall be the standards
applied under the ADA.
(c) Model employer. The Federal Government shall be a model
employer of individuals with disabilities. Agencies shall give full
consideration to the hiring, advancement, and retention of qualified
individuals with disabilities in the federal workforce. Agencies shall
also take affirmative action to promote the recruitment, hiring, and
advancement of qualified individuals with disabilities, with the goal
of eliminating under-representation of individuals with disabilities in
the federal workforce.
(d) Affirmative action plan. Pursuant to 29 U.S.C. 791, each agency
shall adopt and implement a Plan that provides sufficient assurances,
procedures, and commitments to provide adequate hiring, placement, and
advancement opportunities for individuals with disabilities at all
levels of federal employment. An agency fails to satisfy this
requirement unless it has adopted and implemented a Plan that meets the
following criteria:
(1) Disability hiring and advancement program--(i) Recruitment. The
Plan shall require the agency to take specific steps to ensure that a
broad range of individuals with disabilities, including individuals
with targeted disabilities, will be aware of and be encouraged to apply
for job vacancies when eligible. Such steps shall include, at a
minimum--
(A) Use of programs and resources that identify job applicants with
disabilities, including individuals with targeted disabilities, who are
eligible to be appointed under a hiring authority that takes disability
into account, consistent with applicable OPM regulations, examples of
which could include programs that provide the qualifications necessary
for particular positions within the agency to individuals with
disabilities, databases of individuals with disabilities who previously
applied to the agency but were not hired for the positions they applied
for, and training and internship programs that lead directly to
employment for individuals with disabilities; and
(B) Establishment and maintenance of contacts (which may include
formal agreements) with organizations that specialize in providing
assistance to individuals with disabilities, including
[[Page 678]]
individuals with targeted disabilities, in securing and maintaining
employment, such as American Job Centers, State Vocational
Rehabilitation Agencies, the Veterans' Vocational Rehabilitation and
Employment Program, Centers for Independent Living, and Employment
Network service providers.
(ii) Application process. The Plan shall ensure that the agency has
designated sufficient staff to handle any disability-related issues
that arise during the application and selection processes, and shall
require the agency to provide such individuals with sufficient
training, support, and other resources to carry out their
responsibilities under this section. Such responsibilities shall
include, at a minimum--
(A) Ensuring that disability-related questions from members of the
public regarding the agency's application and selection processes are
answered promptly and correctly, including questions about reasonable
accommodations needed by job applicants during the application and
selection processes and questions about how individuals may apply for
appointment under hiring authorities that take disability into account;
(B) Processing requests for reasonable accommodations needed by job
applicants during the application and placement processes, and ensuring
that the agency provides such accommodations when required to do so
under the standards set forth in part 1630 of this chapter;
(C) Accepting applications for appointment under hiring authorities
that take disability into account, consistent with applicable OPM
regulations;
(D) If an individual has applied for appointment to a particular
position under a hiring authority that takes disability into account,
determining whether the individual is eligible for appointment under
such authority, and, if so, forwarding the individual's application to
the relevant hiring officials with an explanation of how and when the
individual may be appointed, consistent with all applicable laws;
(E) Overseeing any other agency programs designed to increase
hiring of individuals with disabilities.
(iii) Advancement program. The Plan shall require the agency to
take specific steps to ensure that current employees with disabilities
have sufficient opportunities for advancement. Such steps may include,
for example--
(A) Efforts to ensure that employees with disabilities are informed
of and have opportunities to enroll in relevant training, including
management training when eligible;
(B) Development or maintenance of a mentoring program for employees
with disabilities; and
(C) Administration of exit interviews that include questions on how
the agency could improve the recruitment, hiring, inclusion, and
advancement of individuals with disabilities.
(2) Disability anti-harassment policy. The Plan shall require the
agency to state specifically in its anti-harassment policy that
harassment based on disability is prohibited, and to include in its
training materials examples of the types of conduct that would
constitute disability-based harassment.
(3) Reasonable accommodation--(i) Procedures. The Plan shall
require the agency to adopt, post on its public Web site, and make
available to all job applicants and employees in written and accessible
formats, reasonable accommodation procedures that are easy to
understand and that, at a minimum--
(A) Explain relevant terms such as ``reasonable accommodation,''
``disability,'' ``interactive process,'' ``qualified,'' and ``undue
hardship,'' consistent with applicable statutory and regulatory
definitions, using examples where appropriate;
(B) Explain that reassignment to a vacant position for which an
employee is qualified, and not just permission to compete for such
position, is a reasonable accommodation, and that the agency must
consider providing reassignment to a vacant position as a reasonable
accommodation when it determines that no other reasonable accommodation
will permit an employee with a disability to perform the essential
functions of his or her current position;
(C) Notify supervisors and other relevant agency employees how and
where they are to conduct searches for available vacancies when
considering reassignment as a reasonable accommodation;
(D) Explain that an individual may request a reasonable
accommodation orally or in writing at any time, need not fill out any
specific form in order for the interactive process to begin, and need
not have a particular accommodation in mind before making a request,
and that the request may be made to a supervisor or manager in the
individual's chain of command, the office designated by the agency to
oversee the reasonable accommodation process, any agency employee
connected with the application process, or any other individual
designated by the agency to accept such requests;
(E) Include any forms the agency uses in connection with a
reasonable accommodation request as attachments, and indicate that such
forms are available in alternative formats that are accessible to
people with disabilities;
(F) Describe the agency's process for determining whether to
provide a reasonable accommodation, including the interactive process,
and provide contact information for the individual or program office
from whom requesters will receive a final decision;
(G) Provide guidance to supervisors on how to recognize requests
for reasonable accommodation;
(H) Require that decision makers communicate, early in the
interactive process and periodically throughout the process, with
individuals who have requested a reasonable accommodation;
(I) Explain when the agency may require an individual who requests
a reasonable accommodation to provide medical information that is
sufficient to explain the nature of the individual's disability, his or
her need for reasonable accommodation, and how the requested
accommodation, if any, will assist the individual to apply for a job,
perform the essential functions of a job, or enjoy the benefits and
privileges of the workplace;
(J) Explain the agency's right to request relevant supplemental
medical information if the information submitted by the requester is
insufficient for the purposes specified in paragraph (d)(3)(i)(I) of
this section;
(K) Explain the agency's right to have medical information reviewed
by a medical expert of the agency's choosing at the agency's expense;
(L) Explain the agency's obligation to keep medical information
confidential, in accordance with applicable laws and regulations, and
the limited circumstances under which such information may be
disclosed;
(M) Designate the maximum amount of time the agency has, absent
extenuating circumstances, to either provide a requested accommodation
or deny the request, and explain that the time limit begins to run when
the accommodation is first requested;
(N) Explain that the agency will not be expected to adhere to its
usual timelines if an individual's health professional fails to provide
needed documentation in a timely manner;
(O) Explain that, where a particular reasonable accommodation can
be provided in less than the maximum amount of time permitted under
paragraph (d)(3)(i)(M) of this section, failure to provide the
accommodation in a prompt manner may result in a violation of the
Rehabilitation Act;
[[Page 679]]
(P) Provide for expedited processing of requests for reasonable
accommodations that are needed sooner than the maximum allowable time
frame permitted under paragraph (d)(3)(i)(M) of this section;
(Q) Explain that, when all the facts and circumstances known to the
agency make it reasonably likely that an individual will be entitled to
a reasonable accommodation, but the accommodation cannot be provided
immediately, the agency shall provide an interim accommodation that
allows the individual to perform some or all of the essential functions
of his or her job, if it is possible to do so without imposing undue
hardship on the agency;
(R) Inform applicants and employees how they may track the
processing of requests for reasonable accommodation;
(S) Explain that, where there is a delay in either processing a
request for or providing a reasonable accommodation, the agency must
notify the individual of the reason for the delay, including any
extenuating circumstances that justify the delay;
(T) Explain that individuals who have been denied reasonable
accommodations have the right to file complaints pursuant to 29 CFR
1614.106;
(U) Encourage the use of voluntary informal dispute resolution
processes that individuals may use to obtain prompt reconsideration of
denied requests for reasonable accommodation;
(V) Provide that the agency shall give the requester a notice
consistent with the requirements of paragraph (d)(3)(iii) of this
section at the time a request for reasonable accommodation is denied;
and
(W) Provide information on how to access additional information
regarding reasonable accommodation, including, at a minimum, Commission
guidance and technical assistance documents.
(ii) Cost of accommodations. The Plan shall require the agency to
take specific steps to ensure that requests for reasonable
accommodation are not denied for reasons of cost, and that individuals
with disabilities are not excluded from employment due to the
anticipated cost of a reasonable accommodation, if the resources
available to the agency as a whole, excluding those designated by
statute for a specific purpose that does not include reasonable
accommodation, would enable it to provide an effective reasonable
accommodation without undue hardship. Such steps shall be reasonably
designed to, at a minimum--
(A) Ensure that anyone who is authorized to grant or deny requests
for reasonable accommodation or to make hiring decisions is aware that,
pursuant to the regulations implementing the undue hardship defense at
29 CFR part 1630, all resources available to the agency as a whole,
excluding those designated by statute for a specific purpose that does
not include reasonable accommodation, are considered when determining
whether a denial of reasonable accommodation based on cost is lawful;
and
(B) Ensure that anyone authorized to grant or deny requests for
reasonable accommodation or to make hiring decisions is aware of, and
knows how to arrange for the use of, agency resources available to
provide the accommodation, including any centralized fund the agency
may have for that purpose.
(iii) Notification of basis for denial. The Plan shall require the
agency to provide a job applicant or employee who is denied a
reasonable accommodation with a written notice at the time of the
denial, in an accessible format when requested, that--
(A) Explains the reasons for the denial and notifies the job
applicant or employee of any available internal appeal or informal
dispute resolution processes;
(B) Informs the job applicant or employee of the right to challenge
the denial by filing a complaint of discrimination under this part;
(C) Provides instructions on how to file such a complaint; and
(D) Explains that, pursuant to 29 CFR 1614.105, the right to file a
complaint will be lost unless the job applicant or employee initiates
contact with an EEO Counselor within 45 days of the denial, regardless
of whether the applicant or employee participates in an informal
dispute resolution process.
(4) Accessibility of facilities and technology--(i) Notice of
rights. The Plan shall require the agency to adopt, post on its public
Web site, and make available to all employees in written and accessible
formats, a notice that--
(A) Explains their rights under Section 508 of the Rehabilitation
Act of 1973, 29 U.S.C. 794d, concerning the accessibility of agency
technology, and the Architectural Barriers Act, 42 U.S.C. 4151 through
4157, concerning the accessibility of agency building and facilities;
(B) Provides contact information for an agency employee who is
responsible for ensuring the physical accessibility of the agency's
facilities under the Architectural Barriers Act of 1968, and an agency
employee who is responsible for ensuring that the electronic and
information technology purchased, maintained, or used by the agency is
readily accessible to, and usable by, individuals with disabilities, as
required by Section 508 of the Rehabilitation Act of 1973; and
(C) Provides instructions on how to file complaints alleging
violations of the accessibility requirements of the Architectural
Barriers Act of 1968 and Section 508 of the Rehabilitation Act of 1973.
(ii) Assistance with filing complaints at other agencies. If an
agency's investigation of a complaint filed under Section 508 of the
Rehabilitation Act of 1973 or the Architectural Barriers Act of 1968
shows that a different entity is responsible for the alleged violation,
the Plan shall require the agency to inform the individual who filed
the complaint where he or she may file a complaint against the other
entity, if possible.
(5) Personal assistance services allowing employees to participate
in the workplace-- (i) Obligation to provide personal assistance
services. The Plan shall require the agency to provide an employee
with, in addition to professional services required as a reasonable
accommodation under the standards set forth in part 1630 of this
chapter, personal assistance services during work hours and job-related
travel if--
(A) The employee requires such services because of a targeted
disability;
(B) Provision of such services would, together with any reasonable
accommodations required under the standards set forth in part 1630 of
this chapter, enable the employee to perform the essential functions of
his or her position; and
(C) Provision of such services would not impose undue hardship on
the agency.
(ii) Service providers. The Plan shall state that personal
assistance services required under paragraph (d)(5)(i) of this section
must be performed by a personal assistance service provider. The Plan
may permit the agency to require personal assistance service providers
to provide personal assistance services to more than one individual.
The Plan may also permit the agency to require personal assistance
service providers to perform tasks unrelated to personal assistance
services, but only to the extent that doing so does not result in
failure to provide personal assistance services required under
paragraph (d)(5)(i) of this section in a timely manner.
(iii) No adverse action. The Plan shall prohibit the agency from
taking adverse actions against job applicants or employees based on
their need for, or
[[Page 680]]
perceived need for, personal assistance services.
(iv) Selection of personal assistance service providers. The Plan
shall require the agency, when selecting someone who will provide
personal assistance services to a single individual, to give primary
consideration to the individual's preferences to the extent permitted
by law.
(v) Written procedures. The Plan shall require the agency to adopt,
post on its public Web site, and make available to all job applicants
and employees in written and accessible formats, procedures for
processing requests for personal assistance services. An agency may
satisfy this requirement by stating, in the procedures required under
paragraph (d)(3)(i) of this section, that the process for requesting
personal assistance services, the process for determining whether such
services are required, and the agency's right to deny such requests
when provision of the services would pose an undue hardship, are the
same as for reasonable accommodations.
(6) Utilization analysis--(i) Current utilization. The Plan shall
require the agency to perform a workforce analysis annually to
determine the percentage of its employees at each grade and salary
level who have disabilities, and the percentage of its employees at
each grade and salary level who have targeted disabilities.
(ii) Source of data. For purposes of the analysis required under
paragraph (d)(6)(i) of this section, an employee may be classified as
an individual with a disability or an individual with a targeted
disability on the basis of--
(A) The individual's self-identification as an individual with a
disability or an individual with a targeted disability on a form,
including but not limited to the Office of Personnel Management's
Standard Form 256, which states that the information collected will be
kept confidential and used only for statistical purposes, and that
completion of the form is voluntary;
(B) Records relating to the individual's appointment under a hiring
authority that takes disability into account, if applicable; and
(C) Records relating to the individual's requests for reasonable
accommodation, if any.
(iii) Data accuracy. The Plan shall require the agency to take
steps to ensure that data collected pursuant to paragraph (d)(6)(i) of
this section are accurate.
(7) Goals--(i) Adoption. The Plan shall commit the agency to the
goal of ensuring that--
(A) No less than 12% of employees at the GS-11 level and above,
together with employees who are not paid under the General Schedule but
who have salaries equal to or greater than employees at the GS-11, step
1 level in the Washington, DC locality, are individuals with
disabilities;
(B) No less than 12% of employees at the GS-10 level and below,
together with employees who are not paid under the General Schedule but
who have salaries less than employees at the GS-11, step 1 level in the
Washington, DC locality, are individuals with disabilities;
(C) No less than 2% of employees at the GS-11 level and above,
together with employees who are not paid under the General Schedule but
who have salaries equal to or greater than employees at the GS-11, step
1 level in the Washington, DC locality, are individuals with targeted
disabilities; and
(D) No less than 2% of employees at the GS-10 level and below,
together with employees who are not paid under the General Schedule but
who have salaries less than employees at the GS-11, step 1 level in the
Washington, DC locality, are individuals with targeted disabilities.
(ii) Progression toward goals. The Plan shall require the agency to
take specific steps that are reasonably designed to gradually increase
the number of persons with disabilities or targeted disabilities
employed at the agency until it meets the goals established pursuant to
paragraph (d)(7)(i) of this section. Examples of such steps include,
but are not limited to--
(A) Increased use of hiring authorities that take disability into
account to hire or promote individuals with disabilities or targeted
disabilities, as applicable;
(B) To the extent permitted by applicable laws, consideration of
disability or targeted disability status as a positive factor in
hiring, promotion, or assignment decisions;
(C) Disability-related training and education campaigns for all
employees in the agency;
(D) Additional outreach or recruitment efforts;
(E) Increased efforts to hire and retain individuals who require
supported employment because of a disability, who have retained the
services of a job coach at their own expense or at the expense of a
third party, and who may be given permission to use the job coach
during work hours as a reasonable accommodation without imposing undue
hardship on the agency; and
(F) Adoption of training, mentoring, or internship programs for
individuals with disabilities.
(8) Recordkeeping. The Plan shall require the agency to keep
records that it may use to determine whether it is complying with the
nondiscrimination and affirmative action requirements imposed under
Section 501, and to make such records available to the Commission upon
the Commission's request, including, at a minimum, records of--
(i) The number of job applications received from individuals with
disabilities, and the number of individuals with disabilities who were
hired by the agency;
(ii) The number of job applications received from individuals with
targeted disabilities, and the number of individuals with targeted
disabilities who were hired by the agency;
(iii) All rescissions of conditional job offers, demotions, and
terminations taken against applicants or employees as a result of
medical examinations or inquiries;
(iv) All agency employees hired under the Schedule A hiring
authority for persons with certain disabilities, and each such
employee's date of hire, entering grade level, probationary status, and
current grade level;
(v) The number of employees appointed under the Schedule A hiring
authority for persons with certain disabilities who have been converted
to career or career-conditional appointments in the competitive
service, and the number of such employees who were terminated prior to
being converted to a career or career-conditional appointment in the
competitive service; and
(vi) Details about each request for reasonable accommodation
including, at a minimum--
(A) The specific reasonable accommodation requested, if any;
(B) The job (occupational series, grade level, and agency
component) sought by the requesting applicant or held by the requesting
employee;
(C) Whether the accommodation was needed to apply for a job,
perform the essential functions of a job, or enjoy the benefits and
privileges of employment;
(D) Whether the request was granted (which may include an
accommodation different from the one requested) or denied;
(E) The identity of the deciding official;
(F) If denied, the basis for such denial; and
(G) The number of days taken to process the request.
[[Page 681]]
(e) Reporting--(1) Submission to the Commission. On an annual
basis, each federal agency shall submit to the Commission for approval,
at such time and in such manner as the Commission deems appropriate--
(i) A copy of its current Plan;
(ii) The results of the two most recent workforce analyses
performed pursuant to paragraph (d)(6) of this section showing the
percentage of employees with disabilities and employees with targeted
disabilities in each of the designated pay groups;
(iii) The number of individuals appointed to positions within the
agency under the Schedule A hiring authority for persons with certain
disabilities during the previous year, and the total number of
employees whose employment at the agency began by appointment under the
Schedule A hiring authority for persons with certain disabilities; and
(iv) A list of changes made to the Plan since the prior submission,
if any, and an explanation of why those changes were made.
(2) Availability to the public. Each agency shall make the
information submitted to the Commission pursuant to paragraph (e)(1) of
this section available to the public by, at a minimum, posting a copy
of the submission on its public Web site and providing a means by which
members of the public may request copies of the submission in
accessible formats.
(f) Commission approval and disapproval--(1) Basis for approval. If
the Commission determines that an agency has adopted and implemented a
Plan that meets the requirements set forth in paragraph (d) of this
section, the Commission shall approve the Plan.
(2) Basis for disapproval. If the Commission determines that an
agency has failed to adopt and implement a Plan that meets the
requirements set forth in paragraph (d) of this section, the Commission
shall disapprove the Plan as required by 29 U.S.C. 791(b). Failure to
achieve a goal set forth in paragraph (d)(7)(i) of this section, by
itself, is not grounds for disapproval unless the Plan fails to require
the agency to take specific steps that are reasonably designed to
achieve the goal.
0
3. Amend Sec. 1614.601 by revising paragraph (f) to read as follows:
Sec. 1614.601 EEO group statistics.
* * * * *
(f) Data on disabilities shall be collected using a method
permitted under Sec. 1614.203(d)(6)(ii) and Sec. 1614.203(d)(6)(iii).
* * * * *
Dated: December 21, 2016.
For the Commission.
Peggy R. Mastroianni,
Legal Counsel.
[FR Doc. 2016-31397 Filed 12-30-16; 8:45 am]
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